Patna High Court
Chhotan Mahton And Ors. vs State on 18 March, 1959
Equivalent citations: AIR1959PAT362, 1959CRILJ1009, AIR 1959 PATNA 362, 1959 BLJR 416
JUDGMENT S.C. Prasad, J.
1. These two appeals have been heard together. One appeal is by accused Chhotan Mahto, who has been convicted under Sections 302, 436/109 and 148 of the Indian Penal Code. The other appeal is by nine persons, who have been convicted under different sections of the Indian Penal Code. Eight of these persons have been convicted under Section 326/149 of the Indian Penal Code. Five of them, namely, appellants Hari Mahto, Kami Mahto, Balgobind Mahto, Pargas Mahto and Jagdish Mahto, have been convicted under Section 148 and the rest under Section 147 of the Indian Penal Code. Appellant Hari Mahto has been further convicted under Sections 302 and 436 of the Indian Penal Code. Appellants Chhotan Mahto and Hari Mahto have been sentenced to imprisonment for life under Section 302 and for ten years under Sections 436/109 and 436 of the Indian Penal Code. The sentences under other sections vary and it is unnecessary to mention them.
2. The prosecution case was that on 10-5-1956, one ghari day remaining, that is, at about 5 or 5-30 p.m. in the afternoon there was a riot in which two persons were killed, namely, Chhatradhari Dharhi and Laldhari Dharhi, in village Onda. These two persons and other Dharnis, who belonged to the same caste, have got their houses in village Onda, almost in the middle of the village. Chhatradhari had his house on the north of a lane and immediately east of die house of Laldhari. The house of Chhatradhari faces east. The house of Laldhari falls on its back side but that also faces east and there is small sahan in front of that house, On the south of the house there Wa3 an opening in the wall, which is a so-called compound mud wall one cubit high. Chhatradhari's' opening in the lane from his house was on the east of it. It was alleged that Chhatradhari was a ploughman of appellant Chhotan, who is a big cultivator of the village but had for some reason left his service and this had annoyed this appellant, who Had sent his man on that day several times to call Chhatradhari, but he had refused to go to him.
For this reason the prosecution alleged that in the evening Chhotan came armed with a gun along with the other appellants, some of whom have been acquitted by the learned Sessions Judge, to the house of Chhatradhari. Out of them one Rajo had also a gun. All of them came to the house of the deceased Chhatradhari and called him out. When he came out Chhotan asked him as to why be had refused to go to him to work as ploughman. Chhatradhari said that as he was not keeping good health, he was unable to work.
Upon this appellant Chhotan was alleged to have abused him and ordered assault. Appellant Hari then gave him a garasa blow, while Chhatradhari was running on his back. He was chased by the four members of the mob, namely, Hari, Balgo-bind, Jagdish and Ramji, and was severely assaulted with garasas. He fell down in the khand of Somar Dharhi, north of his own house. At that time deceased Laldhari had come out of his house and protested against the assault on Chhatradhari.
Whereupon appellant Chhotan was said to have fired a shot from his gun injuring him on his left thigh. Laldhari ran from this place towards north and fell down in the courtyard of Saudagar Dharhi where he died. Chhatradhari also died after some time in the khand of Somar Dhari. After these events the mob retreated. While it was retreating, appellant Chhotan was said to have ordered appellant Hari son of Budhan to set fire to the house of Chhatradhari and Hari then lighted a match stick and set fire to that house which was burnt to ashes.
2. First information report was lodged at 9 p.m. that night at Amawan Police Camp, about 1 1/2 miles from the place of occurrence, by P.W. Saudagar Dharhi. In the first information report he gave the events in a different sequence. He said that the mob came and then after altercation with Chhatradhari Chhotan Mahto ordered that the house should be burnt and then appellant Hari set fire to the house bv a match stick. This attracted several persons including this informant who protested. Thereupon appellant Chhotan fired a shot from his fun injuring Laldhari on his left thigh. Rajo Mahto ad also fired his gun but it did not hit anybody. Hari assaulted Chhatradhari with a garasa on the back.
The remaining persons also brandished their lathis and garasas, but the informant was unable to say who had been hit and at what places. The informant explained the delay by staring that he and other persons were very much afraid and, therefore, they could not venture to go to the thana during day time. As regards the motive of the occurrence, his statement was that some Dharhis and the appellants were fighting cases which had resulted in enmity between them,
3. The Assistant Sub Inspector of Police (P.W. 6), who had recorded the F.I.R., took up the investigation of the case and arrived at the place of occurrence at 11-30 P.M. on the same night. He met constable Achheylal on the spot who had come there about half an hour earlier- The A.S.I, took charge of the dead bodies of Laldhari and Chhatradhari and sent them to Asthawan police station. The A.S.I. also forwarded the fardbeyan to the officer incharge of the Asthawan police station at 3-30 A.M. on the 11th May, 1956.
The Sub Inspector of Police drew up a formal F.I.R. on the basis of the fardbeyan and thereafter held inquest on the dead bodies or Laldhari and Chhatradhari, examined Kuldip Dhari (who has not been examined by the prosecution in this case) and P.W. 1 Parmeshwar and then sent the dead bodies to Bihar sharif Hospital through constable Achheylal for post mortem. The S.I. of police came to the place of occurrence at 7 A.M. and met the A.S.I, there. He took charge of the investigation of the case from him.
The A.S.I, had also searched the houses of the accused persons but did not meet them. Two guns were produced before him, one by Bhikhari Mahto, a member of the family of appellant Chhotan Mahto, and the other by one Basudeo Narain Sinha, a member of the family of Rajo Mahto. After his arrival the Sub-Inspector of Police also directed the Assistant Sub-Inspector to search the houses of the other accused persons and during that search a blood stained carpet was recovered from the house of accused Gopal Mahto. DurinB the investigation the Sub-Inspector of Police also found blood stains on the wea-bera outer fencing wall of Laldhari's outer courtyard and then fit several places in the outer courtyard itself of Laldhari and on the eastern mouth of the corridor going towards the house of Saudagar.
In the courtyard of Saudagar and in the khand of Somar he found pools of blood. Some blood stains were also found on the northern wall of Ch-hatradhari's courtyard which was between that courtyard and Somar's khand. At other places some sprinklings of blood were also detected. There were three rooms in Chhatradhari's house, out of which the southern two rooms which had grass thatch were in possession of the family members of Parmeshwar. The straw roofs of these two rooms were found burnt. The Sub-Inspector also found one paper lying below the v estern wall of Samu Mahto, which was south-east of the tri-junction of the lanes, one running south of the houses of Chhatradhari and Laldhari and the other coming from another direction.
He also found an irregular shot stuck on the surface of a cowdung cake sticking to the wall of Samu Mahto. He found a large number of brickbats in the western lane up to a distance of 50 yards. He found two stacks of bricks, one just at the entrance door of Laldhari in the lane and the other close to the wall of Lachhuman Mahto, to the south-west of the tri-junction of the lanes. The bricks lying bv the side of Laldhari's entrance were found disturbed.
4. During the post-mortem examinations of the dead bodies, which were held at 10-30 A.M. and 12 A.M. on 11-5-1956 by the doctor (P.W. 12), one punctured wound 3/4 x 1/6 on the mid l/3rd of the left thigh and the medial aspect of femur, was detected on the person of Laldhari. The edges of the wound were clean. The wound had passed through the anterior layer of the thigh muscles and had cut both the femoral artery and the vein. The doctor could not find any foreign body in the thigh. According to the doctor the injury had been caused by some sharp pointed substance and death was caused by haemorrhage and shock as a result of this injury.
5. Post mortem on the body of Chhatradhari was held at 12 A.M. and eight injuries were found on his person. Out of them six were incised wounds on the back and the same side of the head. There was one contused wound on the scalp on the left occipital region and there was an abrasion on the right side of the forehead. The 9th, 10th, 11th, and 12th ribs on the back side were found fractured. The liver had been lacerated. The upper lobe of the back of the kidney had been cut. The 10th and 11th ribs on the left side had also been cut and fractured. The spleen was lacerated. According to the doctor all these injuries, except injuries Nos. 5 and 8, namely, the contused wound and the abrasion, appeared to have been caused by garasa.
6. During the investigation the police officer had also taken charge of some ashes of Chhatradhari's roof. When the Assistant Sub-Inspector had arrived at 11-30 P.M. he had found the beam of the roof still burning, but no articles inside the houses, belonging to the deceased or the members of the family, were found burnt.
7. The report of the Chemical Examiner, to whom the blood stained earth and other articles taken from the place of occurrence had been sent, showed that human blood was detected on some packets of the earth and also on some clothes of the deceased;
8. The two guns, which had been seized by the Assistant Sub-Inspector of Police during the investigation, had also been sent to the Fire Arms Expert of the Government of Bihar (P.W. 13), but he found that the barrels of those guns had been cleaned and oiled and, therefore, it was not possible for him to give any opinion about the last firing from those guas. He, however, detected some dirt in the gun of Basudeva Narain, which was said to have been used by accused Rajo.
9. The accused persons pleaded that they were innocent and that appellant Chhotan Mahto had long standing enmity with Laldhari and that the prosecution case was entirely false, as regards the origin, the manner and the place of occurrence. It was said that these appellants had been implicated out of enmity. It was suggested that on that evening Kashi Dhanuk and Trijuga Dhanuk had a quarrel with Chhatradhari, Laldnari, Brahmadeo and Mainwa Dhari under intoxication of toddy. These persons were armed with garasas and bhalas and that accused Lakhan, while he was returning to his house, found this quarrel going on and also detected an injury on the hands of his father, who told him that Brahmdeo had assaulted him.
When this accused protested, Mainma Dhari started pelting brickbats at him, and he also got injured. It may be mentioned that when some of the accused persons were arrested by the police, injuries were found on their persons. They were, therefore, sent to the doctor and the doctor found as many as three injuries on the person of accused Lakhan Mahto and five injuries on the person of Parmeshwar Gope, One of the injuries on his person appeared to have been inflicted by a sharp cutting instrument and was grievous Em nature, having disfigured him. Accused Garbhu had also been examined by the doctor, because an injury had been found on his person. One healed wound 1" long was found by the doctor.
10. There were altogether 14 accused persons who had been put on trial. Out of them four have been acquitted, namely, Amarnath Mahto, Garbhu Mahto, Hari Mahto son of Gopal Mahto and Bimal, by the learned Sessions Judge.
11. In the first information report the witnesses named were Somar Dhari Kashi Dhari, Kishun Dhari, Gajo Dhari and the informant. Out of them Kashi Dhari and Gajo Dhari have not been examined, although Kashi appears to have been injured that evening. Somar and Kishun (P. Ws. 4 and 10) have been disbelieved by the learned Sessions Judge, Parmeshwar was not named in the first information report but he has been examined as an eye witness of the occurrence. Three new witnesses were examined in court, namely, P. Ws. 5, 7 and 8. P. W. 5 is the widow of Chhatradhari. P.W. 7 is the mother of Laldhari, and P.W. 8 is his widow.
This P.W. 8 was not even examined before the committing Magistrate. The learned Sessions Judge has accepted the evidence of the P.Ws. 1, 5, 7, 8 and 9 although in his judgment he has observed, having regard to the discrepancies in the evidence of these witnesses, that the prosecution witnesses appeared to have concealed certain facts and had not stated the whole truth, but the present rase was covered by the decision reported in Abdul Ghani v. State of Madhya Pradesh AIR 1954 SC 31.
The learned Sessions Judge has quoted some observations of their Lordships from the judgment of that case in which it has been pointed out that the Sessions Judge in that case had fallen into an error having made no effort to disengage the truth from the falsehood and to sift the grain from the chaff, because in that case although the prosecution witnesses had not told the whole truth and though from their evidence it was not possible to get an absolutely true picture of the events, yet it was not quite possible to accept the contention that the prosecution case was a complete fabrication and that the murders of three persons and the cutting of the nose of the fourth did not result in the occurrence that had occurred in which some at least of the accused persons had participated.
12. It has been urged before us that these observations were not applicable to the present case, having regard to the state of evidence which completely demolished the whole case of the prosecution regarding the origin and the manner of the occurrence as also the persons who had participated in in the occurrence which might have taken place. It was said that the true account of what had happened, bad not been presented, either to the police, or in the Sessions Court. I nave no doubt that the learned Sessions Judge has not correctly appreciated the observations made by the Supreme Court in the above case.
In that case it was clear that a riot had taken place and, therefore, the defence story that no riot had taken place could not be accepted and secondly it was also clear that some of the accused persons had at least taken part in that riot. In these circumstances, the learned Sessions Judge was held to have been in error in having acquitted all the accused persons before him, merely because he found discrepancies in the evidence of the prosecution witnesses.
That case does not touch the fundamental basis of the criminal law that the burden of proving the case lies always on the prosecution and if, from the circumstances appearing from the evidence, there arises any doubt in the case, it must be held that the prosecution case has not been proved, irrespective of the fact whether the defence taken up by the accused is true or not. And this principle applies both to the corpus delicti as well as to the guilt of the persons who are alleged to have committed the crime.
13. The above case only lays down that where the court accepts the story of the prosecution in respect of the crime in essential particulars, that is to say, the manner in, and the circumstances under which, it was committed, and also that some of the persons, alleged to have taken part in it, had actually been participants in the crime, the court should endeavour to find out which of them were the actual participants, and should not throw out the case, merely because the prosecution party had embellished the actual occurrence by making false embroideries to it, and there were discrepancies in the evidence of the prosecution witnesses. The doctrine of separating the grain from the chaff applies to such a situation. It is, I think, not intended to apply to the following cases :
(a) Where the prosecution account of the occurrence is not, considered on the evidence produced, acceptable in material particulars forming the core of the happenings, the court will not ordinarily be justified in such a situation to act upon any rival theory of the defence, attempted to be proved or suggested during the trial in such a way as to take out one part of it to supplement the prosecution evidence or to add strength to that case or to the evidence adduced by the prosecution in support thereof, and reject the other part of it, and then come to the conclusion that the prosecution had proved its case.
(b) Where the case of the prosecution regarding the occurrence is sought to be proved by evidence which is wholly unacceptable, e.g., witnesses are unreliable, by reason of enmity, by telling an extravagant story, by reason of inconsistencies in their evidence, want of corroboration in suitable cases on material parts of the story, and other like infirmities, the case of the prosecution must be rejected outright, irrespective of the fact whether or not there is any rival theory of the defence, or if there is any, that is untrue.
(c) Where the facts proved beyond doubt, or admitted, indicate that some sort of occurrence must have taken place, there is no rule of law preventing a Judge from arriving at a theory of actual happenings, if this can be fairly done on all the evidence. But this is not permissible, when the prosecution story about the occurrence is found to be false in its fundamental aspects.
It will then be seldom possible to accept the evidence of the witnesses who have evidently conspired to tell a false story.
14. The above legal position follows from a number of cases, notably the cases of Woolmington v. The Director of Public Prosecution, 1935 AC 462; Benoyendra Chandra Pandey v. Emperor, AIR 1936 Cal 73; Rarnaswami Naick v. Rangaswami Chettiar, AIR 1937 Mad 968; Istahar Khondakar v. Emperor, ILR 62 Cal 956; Horilal v. Emperor, AIR 1933 All 893; Ghrupat Pandey v. King Emperor, 2 Pat LT 242: (AIR 1921 Pat 473); Phatali Singh v Emperor AIR 1918 Pat 536; Gouri Narain v. Tilbikram Chetri, 23 Cri L. J., 220: (AIR 1921 Cal 531); Habibur Rahman v. Emperor, AIR 1931 Pat 339; Comming v. Ratnam, 1932 Mad Cr C 23 and Sarwan Singh Rattan Singh v. State of Punjab, (S) AIR 1957 SC 637.
15. I do not think it is necessary to examine the facts of the above cases since those cases clearly illustrate the application of the principles set out above to the facts of each particular case decided, see the reports referred to above. But this much, however, is clear that in deciding those cases the courts have always proceeded upon the above principles. I consider that the above Supreme Court decision does not affect this position. On the contrary, it is more correct to say that this decision only points out the mistaken notion which the lower court in that case had entertained in its appreciation of the evidence before it, and the error committed by it in so doing.
16. I would, however, like to quote the following significant and relevant observations of their Lordships of the Supreme Court in the case of AIR 1957 SC 637 at p. 639 :
"It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of turth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted."
17. The learned Additional Government Pleader argued that the count below had taken the correct view of law and had correctly construed the decision of the Supreme Court in AIR 1954 SC 31 and was right in observing that the present case was covered by the observations made by that Court in that case. Learned Counsel developed his argument thus: he said that in this case there could be no doubt that two murders had taken place in a riot. The defence theory was that the riot had taken place in a drunken brawl in which the Dharhis on one side and the Dhanuks on the other had taken part.
That being so, the court could built its own theory as to what form this riot had actually taken and who were the participants and if it was found that the appellants had taken part in it, they could be convicted, even if it were found that the version of the occurrence of the prosecution was not fully true. I think there is no force in this argument of the learned Counsel for the State having regard to what has been said above.
(His Lordship discussed the evidence and concluded):
(18-25) I am, therefore, satisfied, on consideration of the evidence and of the facts and circumstances of the case, that the prosecution story both on the point of the manner and the origin of the occurrence as well as on the question of the participation of the ap,pellants, is wholly unreliable. The prosecution has failed to prove it.
26. The result, therefore, is that both the appeals are allowed and the appellants are acquitted Those who are in jail must be released forthwith.
Misra, J.
27. I agree to the order proposed.