Jharkhand High Court
Dashrath Prasad Mehta, Butan Mahto And ... vs The State Of Bihar on 19 April, 2006
Equivalent citations: 2007 CRI. L. J. (NOC) 152 (JHAR.) = 2007 (1) AIR JHAR R 425, 2007 (1) AIR JHAR R 425, (2006) 3 EASTCRIC 66, (2006) 3 JLJR 290
Author: D.G.R. Patnaik
Bench: Amareshwar Sahay, D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. These appeals are directed against a common judgment of conviction and sentence dated 28.2.1990 passed by the 3rd Addl. Sessions Judge, Hazaribagh in Sessions Trial No. 176 of 1987 whereby and whereunder the appellants were convicted for offences under Sections 302/201 of Indian Penal Code and sentenced to undergo imprisonment for life under Section 302 and five years rigorous imprisonment for offence under Section 201 of the Indian Penal Code.
2. The appellants were also charged with for offence under Section 364 of the Indian Penal Code along with the offences under Sections 302/201 of the Indian Penal Code.
3. Brief facts of the case is that on 2.10.1986, Rajendra Kumar Mahto (deceased), a minor son of the informant Sarju Prasad Mahto, resident of Village Silwar Kalan, left his house in the morning at 10.00 a.m. for playing nearby, but he did not return home till 2.00 P.M. whereupon the informant and members of his family made a search for the boy but they could not find him. Ultimately two days' later, in the morning of 4th October, 1986, the informant lodged a written report at the Police Station informing that his minor son was missing since 2.10.1986. The written report was registered and a formal FIR was drawn up at the Hazaribagh Police Station against unknown. The informant had also produced a copy of an unsigned letter which he had received on 11.9.1986 containing a demand for ransom of rupees one lakh, coupled with a direction that the money be deposited at a specified place and a threat that failure to comply with the direction would result in the death of seven members of his family. Copy of the aforesaid letter was delivered along with his written report by the informant to the officer in charge of the Police Station.
Investigation of the case was taken up on the same day and in course of investigation, it was gathered by the officer in charge that the letter had been delivered by the appellant Jagdeo Yadav. On the night of 4.10.1986, appellants Jagdeo Yadav and Dasrath Mahto were arrested from their respective houses at village Jordag situated within Churchu Police Station. On the basis of alleged confessional statement leading to recovery, the dead body of the missing son of the informant was recovered from within the bushes at Gurhait Forest which falls also within the jurisdiction of Churchu Police Station at a distance of about 15-20 Kms. from the village of the informant. After preparation of the inquest report, the dead body was forwarded for post mortem. During investigation, two witnesses namely Bakrid Mian (PW5) and Maqbul Hussain (PW6) had appeared before the investigating officer on 11.10.1986 and had given, their respective statements claiming that on 2.10.1986, i.e. the day on which the deceased went missing, both these witnesses had seen the boy being taken by the appellants Jagdeo Yadav and Butan Mahto on their bicycle and on enquiry by the witnesses, Jagdeo Yadav had replied that the boy was being taken to his grand father's house at village Jordag. The statements of these witnesses were recorded before a Magistrate under Section 164 of the code of Criminal Procedure 20.10.1986.
During the course of the investigation, the investigating officer had seized two registered envelops from the post office situated within the campus of St. Columbus College at Hazaribagh. These letters and the photo copy of the letter earlier received by the informant were sent for examination by the hand writing expert along with the specimen handwriting of the appellant Jadgeo Yadav. The report of the handwriting expert was received which indicated that the handwritings on the letters tallied with the specimen handwriting of the appellant Jagdeo Yadav. The appellant Butan Mahato was arrested on 6.10.1986. He too had allegedly confessed before the investigating officer and on the basis of his confession and on his pointing out the place from where the dead body was recovered, the recovery was re-affirmed.
4. As many as 18 witnesses were examined by the prosecution at the trial. A few witnesses were also examined on behalf of the appellants as defence witnesses. The plea of the appellants in their defence was that they were falsely implicated by the informant on account of previous enmity over a land dispute.
5. Out of the several witnesses produced by the prosecution, six witnesses namely, PW1 Shanti Devi (mother of the deceased), PW4 Kedar Mahto, PW8 Manohar Mahto and PW9 Rajendra Singh claimed to be witnesses to the seizure of the registered letters at the post office and the witnesses to the inquest report, PW11 Basant Kumar Mehta claimed to be a witness who was present at the time of recovery of the dead body, and PW13 Shyamlal Sahu claimed to be a postal peon, were merely tendered by the prosecution for their respective cross examination. Out of the remaining witnesses, PW2 Raju Prasad Mehta, a minor brother of the deceased, and PW3 Khelo Devi, grand mother of the deceased, had affirmed that the deceased had left home for playing in the morning of 2.10.1986 (the date of the occurrence) and had not returned home and thereafter the family members went in search of the boy in the afternoon on the same day. PW5 Bakrid Mian and PW6 Maqbul Hussain have been examined by the prosecution on the point that both these witnesses had seen the deceased boy being taken away by the appellants Jagdeo Yadav and Butan Mahto on the same day when the boy was found missing. PW7 Krishna Kant Mahto has been examined by the prosecution in support of the prosecution case that the minor son of the informant was found missing since the afternoon of 2nd October, 1986 and he along with the boy's father and other co-villagers had searched for the boy at several places and also on the point of lodging the missing report at the police station and the action taken by the investigating officer during the course of investigation, including the arrest of Jagdeo Mahato and Dasrath Mahato from their respective houses, recovery of the dead body at the Gurhait forest and preparation of inquest report of the dead body. PW12 Narendra Prasad Singh, a postal peon employed at the relevant time as a Postal Assistant at St. Columbus College was examined on the point of seizure of the two registered envelops by the police. PW14 Sarju Prasad Mehta (informant) was examined to support the prosecution case and also the details of the sequences and the materials collected by the investigating officer. PW15 Lalit Lakra, and PW16 D.D. Sahay are investigating officers of the case. PW10 Dr. S.K. Sahay had conducted post mortem examination on the dead body of the deceased and he testifies that the deceased Rajendra Kumar Mehta, aged about 9 years, had suffered homicidal death and that the death was due to asphyxia caused by throttling and had occurred about 48 hours prior to the time of post mortem examination. PW17 Hoti Ram is a formal witness and PW18 Keshav Prasad is the hand writing expert whom the prosecution had examined to testify on the point that the specimen handwriting of the appellant Jagdeo Yadav tallied with the handwriting contained in the photo copy of the letter earlier received by the informant prior to the date of the occurrence.
6. Apparently, there is no eye-witness to the murder of the deceased and the case of the prosecution rests entirely on circumstantial evidence.
7. The trial court, on analyzing the prosecution's evidences appearing on record, has listed the circumstantial evidence under three separate categories.
The first category relates to the evidences which claim to suggest that the ransom letter which the informant had received about a month earlier was written by the appellant Jagdeo Yadav in which he had demanded ransom amount of rupees one lakh and had threatened to liquidate seven members of the informant's family. The second category relates to the evidences of the two witnesses, PWs. 5 and 6 on the basis of which the prosecution has claimed that the deceased was last seen in the company of the appellants Jagdeo Yadav and Butan Mahto who had allegedly taken the deceased boy along with them in the morning of 2.10.1986 and thereafter the deceased was not seen alive. In the third category is the evidence of the witnesses who have claimed that all these three appellants had made their respective confession and on the basis of the confession leading to the recovery, the dead body of the deceased was recovered from Gurhait forest.
8. The trial court did not rely upon the evidences relating to the first two categories and had recorded its finding that the evidences led by the prosecution did not affirmatively confirm that the ransom letter was written by the appellant Jagdeo Yadav.
On the 2nd category, the trial court had recorded its finding that the evidences of the two witnesses, namely PWs 5 and 6 are totally unreliable. The trial court had observed that even though these witnesses claim to have seen the appellants Jagdeo Yadav and Butan Mahto taking the deceased boy along with them on their bicycle, they did not reveal this important information either to the informant or to any other person of the village promptly, and their claim that both of them had gone out of station on the same day and had returned after about 5/6 days to their village has not been corroborated by any supportive evidence. The trial court has made a significant observation that though PW6 has claimed that his son Md. Nizam, a 15 year old boy, was also present with him at the time when he (PW6) had seen the appellants Jagdeo Yadav and Butan Mahto in the forest taking away the deceased boy along with them, yet, Md. Nizam did not reveal this important information to the informant or any person in the village despite the fact that the entire village was in search of the missing boy since 2.10.1986. The trial court has drawn an adverse inference for the non-examination of Md. Nizam by the investigating officer and failure of the prosecution to produce the material witnesses on the aforesaid issue.
The trial court has, however, placed reliance on the circumstantial evidence relating to the aforesaid third category and has recorded its finding that the confession of the appellants leading to recovery of the dead body from the forest confirms that the appellants had concealed the dead body in the forest and it also leads to the inference that they were the authors of the death of the deceased. Upon such finding, the trial court, while acquitting the appellants under Section 364 of the Code of Criminal Procedure, has convicted them under Sections 302/201 of the Indian Penal Code and sentenced them accordingly.
9. The appellants have challenged the finding of their conviction as recorded by the learned trial court mainly on the ground that the finding is perverse and against the materials on record and that the trial court has committed serious error firstly in relying upon the prosecution evidence that the appellants had confessed their guilt and secondly by drawing an absurd inference that the alleged confession of the appellants leading to the recovery of the dead body did confirm that the appellants had committed murder of the deceased.
10. Learned Counsel for the appellants have commonly argued that the evidence adduced by the prosecution on the point of the alleged confession by the appellants is totally unreliable. Referring to the evidence of the informant, PW14, the evidence of PW7 and the evidence of the investigating officer PW15, the learned Counsel for the appellants Jagdeo Yadav and Butan Mahto pointed out that none of these witnesses had deposed that the appellants had confessed that they had killed the deceased. Rather, the evidence of these witnesses do not go beyond suggesting that after their arrest, the two appellants, namely Jagdeo Yadav and Butan Mahato, had allegedly stated that they knew where the dead body was lying and they had led the investigating officer to the place where from it was recovered. Learned Counsel argue that even according to the admission made by the investigating officer PW15, there was no material before him available on 4.10.1986 to raise suspicion against the appellants Jagdeo Yadav and appellant Dasrath Mehta for visiting their house to arrest them on the night of 04.10.1986. Neither the informant (PW14), nor PW7 has claimed to have fed any information to the investigating officer leading to suspicion against both these appellants. Learned Counsel argue that in absence of such material information, the only inference which has to be drawn is that both these appellants have been implicated by the informant on account of the admitted fact that they were on inimical term with the informant due to land dispute. Learned Counsel further argue that both these appellants Jagdeo Yadav and Butan Mahto were arrested from their house while they were sleeping and after taking them to the police station, they were subjected to third degree torture and made to sign on papers by force to support the allegation that they made confession of their guilt. Learned Counsel have invited attention in this context to the evidence of the investigating officer (PW15) who has admitted that both the above named appellants had sustained injuries at the time of arrest and on their production before the magistrate, both of them were referred for medical treatment of the injuries found on their person. Learned Counsel further argue that the informant has apparently cooked up a false story of receiving a ransom note and his failure to produce the original letter before the police is indicative of this fact. Learned Counsel argue that the aforesaid facts appearing in the evidence of the witnesses lead to the only inference that neither of the appellants, Jagdeo Yadav or Dasrath Mahto had made any confession whatsoever before the investigating officer. It is further argued that even assuming for the sake of argument that both these appellants led the police and pointed out the place from where the dead body of the deceased was recovered, it in itself does not lead to the conclusion that the appellants had committed murder of the deceased.
11. Learned Counsel appearing for the appellant Butan Mahto has argued that since admittedly, the dead body was recovered by the police even before the arrest of the appellant Butan Mahto, his alleged confession before the police cannot be taken as a confession leading to recovery.
12. The question which arises on the basis of the grounds taken by the appellants is, firstly, whether the evidence adduced by the prosecution confirm that the appellants Jagdeo Yadav and Butan Mahto had made any voluntary confession of their guilt and had made disclosure leading to the recovery of the dead body providing (SIC) admissible and reliable piece of evidence and secondly, whether mere recovery of the dead body of the deceased on the pointing out by the appellants in absence of any other circumstance does lead to the inference and conclusion that the appellants had committed murder of the deceased.
13. Referring to the evidence of the investigating officers (PWs. 15 and 16), the informant PW14 and the evidence of PW7, I find that these witnesses have narrated the sequence of events, which had transpired since the afternoon of 2.10.1986 when the deceased had not returned home and was found missing. The informant PW14 claims that he had searched for his missing son at several places and had also informed the Pramukh (PW7) who had also joined in the search made for the missing boy and ultimately, a missing report was lodged at the police station by the informant on 4.10.1986 at about 11.a.m. The informant (PW14) and PW7 have further narrated that they had accompanied the investigating officer, PW15 initially to the informant's own village Silwar Kalan and from there to the post office located in the campus of St. Columbus College and the seizure of the two registered letters from the post office was made in presence of the witnesses Kedar Mahto and Rajendra Singh. They further narrate that in the evening of the same day, they had proceeded alongwith the investigating officer to Churchu Police Station and from there they proceeded to village Jordag along with the officers of the Churchu P.S. and at about 10/10.30 P.M., the appellant Jagdeo Yadav was arrested from his house and was interrogated by the investigating officer. The witnesses further add that after arresting the appellant Jagdeo yadav, the investigating officer went to the house of Dasrath Mehta in the same village and arrested him and both the appellants were brought to the police station, presumably to Churchu P.S. Both these witnesses as well as the investigating officer further continue their narration stating that at about 3.00 a.m. on the basis of the confession made by the appellants Jagdeo Yadav and Dasrath Mehta, they proceeded to Gurhait forest and recovered the dead body from within the bushes in the jungle. The witnesses further add that the inquest report was prepared by the investigating officer and the dead body was thereafter forwarded for post mortem examination. It is significant to note that neither PW14, nor PW7 has disclosed as to what prompted the police officer to proceed to village Jogrdag and arrest the appellants Jagdeo Yadav and Dashrath Mehta. Even on being asked by the defence, the investigating officer has failed to disclose as to what was the circumstance prompting him to arrest the two appellants in the dead of night on 4.10.1986 from their respective houses. Apparently, the prosecution has suppressed material information and in the light of the informant's own admission that there was pending land dispute between him and the appellant Butan Mahto, an adverse inference that the prompting to the investigating officer to arrest the appellants came from the informant's home can reasonably be drawn. Further-more, from the admission made by the investigating officer as also from perusal of the lower court records, it appears that both the appellants Jagdeo Yadav and Butan Mahto had sustained multiple injuries on their person. This was observed by the magistrate when both the appellants were produced before him. The plea taken by the investigating officer that the two appellants had sustained injuries at the time of arrest when they were trying to flee away, is thoroughly unconvincing as no such statement appears to have been recorded by the investigating officer in the case diary. The informant as well as PW7 are conspicuously silent on this issue and neither of them has offered any explanation as to how both the appellants sustained injuries, nor do the witnesses support the plea taken by the investigating officer to explain the injuries. It is apparent that both these appellants were brought to the police station on the same night and were subjected to third degree torture. There is reason to believe that both the appellants were subjected to threats and duress by the police at the police station. Under such circumstances, it cannot be believed that the two appellants had made any voluntary confession before the police or before the witnesses acknowledging that they had committed murder of the deceased. Significantly, none of the appellants had made any confession of guilt before the magistrate, nor did the investigating officer proceed to get the statements of the appellants recorded by the magistrate under Section 164 of the Code of Criminal Procedure. Where there is reason to suspect that the confession by the accused before police was not voluntary, the same cannot be relied upon.
As regards the recovery of the dead body allegedly on the pointing out by the appellants, strangely enough, the witnesses examined by the prosecution on this issue, namely PW7and 14, have not been made witnesses to the inquest and the signatories to the inquest report have not testified that the recovery of the dead body was made in their presence on the pointing out by the two appellants and that the inquest was prepared in their presence In absence of independent corroboration, implicit reliance on the testimony of the informant and that of PW7, - both of whom are related to each other and being interested witnesses,- cannot be made. It is doubtful as to whether both these witnesses were at all present at the time and place from where the dead body was recovered.
14. Analyzing the evidence of PWs 5 and 6, the trial court has rightly recorded its findings that both these witnesses are unreliable and there is reason to believe that both these witnesses have been planted in order to create incriminating evidence against the appellants Jagdeo Yadav and Dasrath Mehta. The evidence of PW1 Shanti Devi who is the mother of the deceased is significant in this context in as much as she admits that after her son was found missing, there was a hue and cry in the village and the entire village had assembled and nobody informed as to where the boy had gone. Had PW6 and his son Md. Nizam actually seen the deceased being taken away by the appellants on 2.10.1986, the son of PW6 who was admittedly present all along at his house situated at about 30-40 yards away from the house of the informant, was expected to inform the informant and the family members of the deceased that the deceased was seen being taken away by the appellants. The fact that Md. Nizam did not make any such disclosure when almost the entire village was in search of the missing boy and the fact that Md. Nizam was not made a witness in this case and the contention that both PWs 5 and 6 left their village on 2.10.1986 and dramatically re-surfaced on the same day five days later and at about the same time to be simultaneously present before the investigating officer is an unbelievable coincidence and it only lends support to the belief that both PWs 5 and 6 have been intentionally planted to create incriminating evidence against the appellants.
15. It appears from the impugned judgment that the learned trial court has failed to consider that the prosecution has not adduced any incriminating circumstance against the appellants Jagdeo Yadav and Dasrath Mehta to prompt the investigating officer to arrest them on the late night of 4.10.1986. The trial court also appears to have ignored the fact that both the aforesaid appellants had sustained multiple injuries and the prosecution had failed to offer any explanation, much less reasonable explanation, for the injuries found on the person of the appellants. The trial court has also failed to consider that the aforesaid circumstances negate the claim of the prosecution that the appellants had made any voluntary confession of their guilt. Having erroneously accepted the evidence of PWs 14,7 and 15 on the point of confession leading to recovery of the dead body of the deceased, the trial court appears to have committed further error by drawing an inference that the knowledge on the part of the appellants regarding the place where the dead body was found, ipso facto confirms that the appellants were the authors of the death of the deceased boy.
As regards the appellant Butan Mahto, his conviction recorded by the learned trial court again on the ground that he made confession leading to recovery of the dead body is totally erroneous. The trial court appears to have ignored the fact that admittedly, the dead body was recovered much prior to the arrest of the appellant Butan Mahto and, therefore, it cannot be said that the dead body was recovered on the basis of confession of the appellant Butan Mahto. Mere knowledge of the place where the dead body was lying does not lead to a definite inference that the appellant had committed murder of the deceased. In view of the above discussions, the impugned order of conviction and sentence of the appellants as passed by the trial court cannot be sustained and is fit to be set aside.
16. For the reasons aforesaid, these appeals are allowed and the order of conviction and sentence of the appellants passed by the trial court in S.T. No. 176 of 1987 is set aside. The appellants are on bail. The appellants are acquitted of the charges for the offence under Sections 302 and 201 of the Indian Penal Code and they are discharged from the liabilities of their respective bail bonds.