Patna High Court
Awadh Mahto @ Awadhesh Prasad @ Awadh ... vs The State Of Bihar on 3 November, 2006
Equivalent citations: 2007CRILJ342, 2007 CRI. L. J. 342, 2007 (2) AIR JHAR R 447 (2007) 1 PAT LJR 652, (2007) 1 PAT LJR 652
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad, Rekha Kumari
JUDGMENT Chandramauli Kr. Prasad, J.
1. All the three appeals arise out of the same judgment and, as such, they were heard together and are being disposed of by this common judgment.
2. Accused Sumundri Devi, Mamta Devi, Bachchi Devi and Baliram Mahto besides appellants Birbal Mahto, Uday Prasad @ Udal Mahto and Awadh Mahto were charged for intentionally causing the death of Subodh Kumar in prosecution of their common object, punishable under Section 302/149 of the Indian Penal Code. Appellant Nagina Mahto has been charged for committing the murder of Subodh Kumar, whereas Ganauri Mahto since deceased and appellants Kishun Mahto stand charged for abeting his murder punishable under Section 302 and Section 302/114 of the Indian Penal Code respectively. All the appellants have also been charged for possessing unlicenced fire arms, such as, rifles and guns punishable under Section 27 of the Arms Act. Appellant Udal Mahto and Birbal Prasad have also been charged for causing - hurt to Chandrabhushan punishable under Section 323 of the Indian Penal Code.
3. First Additional Sessions Judge, Hilsa by judgment dated 11.8.2000 passed in Sessions Trial No. 610 of 1998 held all the appellants guilty of the charges levelled against them, excepting appellant Birbal Mahto who has been acquitted of the charges under Section 302/149 of the Indian Penal Code, Section 27 of the Arms Act and appellant Udal Prasad under Section 323 of the Indian Penal Code and sentenced the appellants found guilty of the offence under Section 302,302/114 and 302/149 of the Indian Penal Code to undergo rigorous imprisonment for life and rigorous imprisonment for three years each under Section 27 of the Arms Act. Appellant Birbal Mahto found guilty of offence under Section 323 of the Indian Penal Code has been sentenced to undergo simple imprisonment for three months. Sentences inflicted have been directed to run concurrently. Samundri Devi, Bachchi Devi, Mamta Devi and Baliram have been acquitted of all the charges.
4. Being aggrieved by the same the appellants have preferred these appeals.
5. Appellant No.1 Ganauri Mahto in Criminal Appeal No. 466 of 2000 is dead and, as such, by order dated 1.8.2006 his appeal has abated.
6. According to the prosecution on 20.5.1998 "the Informant Harihar Mahto (P.W.7) alongwith his sons, namely, Chandrabhushan, (P.W.6), Ashutosh Kumar (P.W.5) and Mukesh (P.W.1) had irrigated their Mung crops, north to their village, and returned to their house at about 9.30 A.M., when informant asked his daughter Sarita Kumari (P.W.2) to serve food. In the meantime Ganauri Mahto since deceased and appellants Kishun Mahto, Nagina Mahto, Awadh Mahto and Udal Mahto, armed with rifles and guns entered into the house and complained that they had become RANGDARS, whereupon his son Subodh the deceased replied that there is no question of they being Rangdars. At this all the accused persons resorted to firing from their rifles and guns, whereas the other accused persons were put on trial and acquitted started brick-batting. It is further alleged that appellants Ganauri Mahto and Kishun Mahto caught hold of right and left arms of his son Subodh respectively and then appellant Nagina Mahto fired from his rifle which caused injury to the deceased Subodh below the neck on his ribs. According to the prosecution, when the informant and his family members tried to pacify the matter, appellants Udal Prasad and Birbal Mahto assaulted Chandrabhushan (P.W.6) another son of the Informant by means of brick-bat causing injury to him.
7. According to the prosecution, after the incident Subodh, the injured was being taken to Telhara for treatment but he died in the way. The Informant carried his dead body to Telhara Police Station, where he gave his fardbeyan (Ext.2) and on that basis Ekangarsarai (Telhara) P.S. case No. 155(5) of 1998 was registered under Section 147, 148, 149, 337, 341 and 302 of the Indian Penal Code. The cause of occurrence is the long standing land litigation between them.
8. Police after investigation submitted charge sheet and accused persons were ultimately committed to the Court of Sessions to face the trial. Appellants pleaded not guilty and claimed to be tried.
9. Prosecution in support of its case had altogether examined ten witnesses. P.W.1 Mukesh Kumar, P.W.2 Sarita Kumari, P.W.3 Neelam Devi, P.W.5 Ashutosh Kumar, P.W.6 Chandrabhushan Kumar and informant P.W.7 Harihari Mahto claim to be eye witnesses to the occurrence. P.W.4 Kishori Mahto alias Kishun Prasad had arrived at the place of occurrence after the incident, whereas P.W.8 Dr. Ram Kumar Prasad is the doctor who had conducted the post mortem examination on the dead body of deceased Subodh Kumar. P.W.9 Shyamlal Champiya is the Investigating Officer of the case. P.W.10 Dr. R.P. Sharma had examined the injured P.W.6 Chandrabhushan Kumar.
10. Appellants besides other accused persons since acquitted have also examined altogether eight defence witnesses which include the appellants Birbal Prasad and Udal Prasad and accused Sumundri Devi (since acquitted) as D.Ws. 4, 6 and 7 respectively. Defence witnesses have been examined to prove the plea of ali bi taken by some of the accused persons as also to show that the occurrence has not taken place in the manner suggested by the prosecution.
11. P.W.1 Mukesh Kumar is the son of the Informant and the brother of the deceased and has stated in his evidence that on 20th of May, 1998 he was at his house when his father P.W.7 Harihar Mahto, and his brothers Chandrabhushan Kumar (P.W.7), Subodh Kumar (deceased) and Ashutosh Kumar (P.W.5) and his sisters Sarita Kumari (P.W.2) and Neelam Devi (P.W.3) were also in the house. His father, according to this witness, asked for food from Sarita Kumari. in the meanwhile appellants armed with rifle and gun came and stated that they have become Rangdars, whereupon deceased Subodh Kumar replied that there is no question of they being Rangdar. At this appellants Ganauri Mahto and Kishun Mahto caught hold of his right and left hand respectively and appellant Nagina Mahto fired which caused injury to Subodh Kumar below the neck when they tried to pacify the situation, appellant Birbal Mahto besides other accused persons since acquitted started brick-batting and the stone thrown by appellant Birbal Mahto hit Chandrabhushan (P.W.6) in his chest. According to this witness while Subodh Kumar was being taken to hospital at Telhara, he died.
12. P.W.2 Sarita Kumari is the daughter of the informant and sister of the deceased and in her evidence she had supported the case of the prosecution in all material particular and had stated that her father asked for food, when all the appellants excepting Birbal came armed with rifle and gun and stated to Subodh Kumar that he has become a big Rangdar. At this Subodh replied that there is no question of he being a Rangdar. Then Ganauri Mahto caught hold his one hand whereas appellant Kishun Mahto another and appellant Nagina Mahto fired at him. She had further stated about the brick-batting by other acquitted accused persons. In her cross examination she had stated that the. accused persons were at the eastern side of the house at a distance of about one and half forearm. According to this witness although the food was cooked but could not be served. She had also stated that in the occurrence excepting one accused no body had resorted to firing.
13. P.W.3 Neelam Devi is another daughter of the informant and sister of the deceased, who claims to be an eye witness to the occurrence and as stated in her evidence that while she was at her house her father returned and asked for food from Sarita Kumari (P.W.2) and in the meanwhile appellants excepting Birbal armed with rifle and sun entered into the house and stated that they have become Rangdars to which the deceased Subodh replied that there is no question of becoming Rangdar. Thereafter appellant Kishun Mahto caught his left hand whereas Ganauri Mahto his right hand and appellant Nagina fired which caused injury on the upper portion of the chest and other accused persons started brick-batting and a stone thrown by appellant Birbal hit P.W.6 Chandrabhushan on his chest. According to this witness, the occurrence has taken place because of the land dispute with Ganauri Mahto and appellant Kishun Mahto.
14. In the cross-examination she had stated that no untoward incident had taken place for about a year prior to the occurrence. She had also stated that besides 7 of his family members, ten accused persons were also in the house. She had also stated that the size of the room where the occurrence has taken place is 15' x 9'. She has given the description of the house and adjoining land and its areas to be 7 decimals and the size of the house to be between 62 to 72 feet from east to west and 50 feet from north to south. She has denied the suggestion given to her that on the date of incident she was at her matrimonial home.
15. P.W.4 (Sic 3) Kishori Mandal does not claim to be an eye witness to the occurrence and according to him, while he was sitting at the Dalan of one Hanuman Singh he heard sound of firing whereupon he went towards the house of Informant Harihar Mahto and saw the accused persons fleeing away from the place of occurrence as also Ganauri Mahto, appellants Kishun Mahto and Nagina Mahto armed with rifle. When he reached the place of occurrence he found the deceased Subodh in injured condition, profusely bleeding. He was being taken to Telhara for treatment but died on the way itself. In the Cross examination he had stated that he had heard the sound of firing three to four times. which has taken Place in short interval and when he arrived at the place of occurrence about 100 to 200 persons had already gathered before him. However, he did not remember the names of persons assembled.
16. P.W.5 Asutosh Kumar is another brother of the deceased and the son of the Informant and he in his evidence stated that Ganauri Mahto (since deceased) and appellants Kishun Mahto. Nagina Mahto and Awadh Mahto came to his house armed with rifle and gun and questioned as to whether they had become Rangdars, at which the deceased Subodh Kumar stated that there is no question of .being Rangdar, At this appellant Ganauri Mahto caught hold of his right hand and appellant Kishun Mahto left hand and appellant Nagina Mahto fired at him which caused injury on ribs below the neck. In the meanwhile according to this witness accused Baliram Mahto and Birbal Mahto came and started brick-batting which caused injury to his brother Chandrabhushan Kumar (P.W.6). In paragraph 6 of the cross examination this witness has stated that two accused persons were armed with rifle whereas three were armed with gun. According to him Ganauri Mahto and Appellants Awadh Mahto and Kishun Mahto were armed with gun. whereas appellant Nagina Mahto and Udal Mahto with rifle. He knew difference between rifle and gun and had admitted that neither rifle nor gun was available in his house. In the cross examination he has further stated that appellant Nagina had not fired touching the body but from the distance of one and half forearm.
17. P.W.6 Chandrabhushan Kumar is the another brother of the deceased and son of the. informant and has sustained injury in the incident. Like other eye the witnesses he had also supported the case of the prosecution and had deposed that while he was at his residence appellants Udal Mahto, Awadh Mahto, Ganauri Mahto (since deceased) and Nagina Mahto came there armed with rifle and gun and stated that they had become - Rangdars. to which his brother deceased Subodh Kumar replied that there is no question of being Rangdar. At this all the accused persons started firing and thereafter Ganauri Mahto and Kishun Mahto caught hold of the deceased and appellant Nagina Mahto fired causing injury on his chest. Later he volunteered that it hit ribs below the neck. Thereafter according to this witness other accused persons including appellant Birbal Mahto started brick-batting and stone thrown by appellant Birbal caused injury on his chest. Subodh. according to this witness was thereafter being taken to Telhara for treatment but he succummed to his injury in the way. This witness had also stated that inquest report was prepared in his presence and he had signed the same. In the cross examination he had stated that firing had taken place for about a minute from a distance of 6-7 forearm towards them but he did not sustain any injury. According to him. firing had not taken place in the room but from the west to the western gate of the Gosala and at that time they were at. Gosala. He had specifically stated that Gosala is inside the house itself and further stated that the house consisted of a room and a Gosala and people live in the Gosala. In his cross examination he had specifically stated that in the Gosala Ganauri Mahto, appellant Kishun Mahto. Nagina Mahto. Udal Mahto and Awadh Mahto had entered and one Kishun and Ganauri had caught hold the deceased. In paragraph 10 of the cross examination he had stated that he did not see the appellant Nagina Mahto firing.
18. P.W.7 Harihar Mahto is the Informant of the case and claims to be an eye witness to the occurrence. According to him on 20.5.1998 at about 9.30 A.M. while he was at his residence appellants came armed with rifle and gun and questioned as to whether they have become Rangdars to which his son replied that there is no question they becoming Rangadars. At this Ganauri Mahto. appellants Kishun Mahto. Nagina Mahto. Udal Mahto and Awadh Mahto started firing and Ganauri Mahto and Kishun Mahto caught hold of the right and left hand of Subodh and appellant Nagina Mahto fired at him which caused injury to him on ribs below the neck. Thereafter other accused persons since acquitted and appellant Birbal Mahto started brick batting which caused injury to his another son Chandrabhushan Kumar (P.W.6). According to this witness occurrence has taken place as there was dispute with the family of Ganauri Mahto in regard to a house. In the cross examination he had denied the suggestion that after they lost the case pertaining to house, they hurled abuses to D.W.3 Arwajo Devi and Chandrabhushan Kumar attempted to fire and the deceased Subodh Kumar while preventing her sustained the injury and died. As regards the non-examination of the two witnesses, namely, Anuj Kumar and Ajay Kumar he had stated that Anuj had gone in collusion with the accused persons and he is not prepared to depose, whereas Ajay is living in Pune and does not want to depose.
19. P.W.8 Dr. Ram Kumar Prasad, at the relevant time was posted as Civil Assistant Surgeon and has stated that on 20.5.1998 at 4.55 P.M. he conducted the post mortem examination on the dead body of Subodh Kumar and found rigour mortis present on all the four limbs on account, anetemortem injury. He also found a lacerated injury 1"x 1/2"x cavity deep with black inverted margin situated on left infraclivicular region, left to sterno clivicular joint which in his opinion was wound of entry. He found blood clots present underneath tissues and on dissection of chest aorata, left lung and pulmonary vessel lacerated. He also found chest cavity full of blood and right lungs and heart intact but empty. A metal simulating bullet was recovered from vertebra from the left side. Doctor found some digested food in the stomach of the deceased. In his opinion death had occurred due to heamorrhage and shock due to above injuries caused by fire arms and time elapsed since death within 24 hours.
20. P.W.9 Shyam Lal Champiya at the relevant time posted as the Officer Incharge of Telhara Police Station and had recorded the fardbeyan (Ext.4) and also proved the formal First Information Report drawn by another Police. Officer. He had inspected the place of occurrence, prepared the inquest report and sent the dead body for post mortem. He had found blood stains on the door of the house.
21. P.W.10 Dr. R.P. Sharma at the relevant time was posted as Medical Officer, Primary Health Centre Ekangarsarai and has examined Chandrabhushan Kumar (P.W.6) on 20.5.1998 and found bruise. red colour 2cmx 1cm on right side of the chest below right nipple which in his opinion was simple in nature.
22. D.W.1 Jagdeo Prasad, at the relevant time was Headmaster of a Middle School and under the order of the Court had brought the attendance register of the school where accused Baliram Prasad Singh was posted. As Accused Baliram Prasad Singh has been acquitted, I do not consider it expedient to refer to his evidence.
23. D.W.2 Kanti Devi is the wife of appellant Birbal Mahto and had stated that on 20.5.1998 he was working at Bokaro. Appellant Birbal Mahto has also examined himself as D.W.4. He has also stated that on the fateful day he was working at Bokaro.
24. D.W. 3-Arwajo Devi has stated that while she was at the residence of her brother Ganauri Mahto, after serving food to her brother at about. 10 A.M. she was standing at the door of the house, Subodh Kumar (since deceased) came and started hurling abuses to which she protested, whereupon Chandrabhushan Kumar came armed with gun. This was objected to by deceased Subodh Kumar and Subodh Kumar sustained injury of the firing resorted by Chandrabhushan Kumar (P.W.6). She had stated that she had tried to give the said information to the police but did not succeed.
25. D.W.5 Kedar Mahto is the author of the application said to have been written at the residence of D.W.3 Arwajo Devi (Ext.b).
26. D.W.6 Udal Prasad is appellant himself and has examined himself to prove his alibi. He has stated that on the date of incident he was working at village Mehrban in the district of Ludhiana.
27. D.W.7 Samudri Devi. since acquitted is the wife of Ganauari Mahto (Since deceased) and had deposed that no occurrence as suggested by the prosecution has taken place. She had further stated that her son Birbal lived alongwith his family at Bokaro and that the family of appellant Kishun Mahto and Awadh Mahto also lived at Ludhiana.
28. D.W. 8 Devanand Prasad had stated that on 19.5.1998 appellant Nagnina Mahto had purchased Television at village Meharban in the district of Ludhiana and had proved the sale document.
29. The trial Court on appreciation of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly held the appellants guilty as above.
30. Mr. Kanhaiya Prasad Singh, Senior Advocate appearing on behalf of the appellants submits that according to the prosecution, altogether 17 persons were inside the room. where the appellants are alleged to have resorted to firing but only one person had sustained fire arm injury. He points out that in such a situation several persons would have sustained injuries and the very fact that only one persons had sustained fire arm injuries clearly shows that prosecution has not come out with true version of the occurrence. In this connection he has drawn my attention to the evidence of P.W.3. in paragraph 10 of her cross examination, where she had stated that at the time of occurrence in the house seven persons of her family and ten accused persons were present.
31. Mr. Lala Kailash Bihari Prasad. Additional Public Prosecutor, however. Appearing on behalf of the State submits that the evidence of this witness has to be understood in the context and the background it was given and when appreciated so the case of the prosecution can not be found to be improbable.
32. Having appreciated the rival submission. I do not find any substance in the submission of Mr. Singh. P.W.6 Chandrabhushan Kumar, who had sustained injury in the occurrence had clearly stated that the house consisted of two rooms only and he had described one out of the two rooms as Gosala. According to her at the time of occurrence animals were not living in the room but other persons used to live in that and the occurrence had taken place in the Gosala. Thus, according to him when P.W.3 has stated that there were 17 persons in the house it has to be understood that all those persons were not on the Gosala and in such a situation one person sustaining injury and dying later on cannot be said to be improbable. From the evidence of P.W.3 Neelam Devi that altogether 17 persons were in the house (Ghar), it cannot be inferred that all the 17 persons had flocked together in the Gosala when firing was resorted. It is further relevant here to state that it was the deceased who protested to the abuse made and he becoming a target of assault is but natural. In such circumstance other person not sustaining injuries cannot be said to be unnatural.
33. Mr. Singh, draws our attention to the evidence of the Investigating Officer, P.W.9 Shyamlal Champiya in paragraph 9 of her cross examination wherein he has stated that he had not found any bullet mark at the place of occurrence. He submits that according to the prosecution firing had taken place and hence absence of bullet mark in the house, where the occurrence had taken place clearly shows that no occurrence as alleged by the prosecution had taken place. I do not find any substance in the submission of the learned Counsel.
34. It has come in the evidence of prosecution witnesses that after the deceased protested. accused persons had resorted to firing. They have not stated it was aimed towards a particular person. It has further come in evidence that thereafter two of the. appellants caught hold of the deceased and appellant Nagina Mahto fired at him which caused his death, In such a situation absence of any bullet mark at the place of occurrence is not unnatural. As regards the absence of empty cartridges, it has come in evidence, that a large number of villagers had collected at the place of occurrence and in that situation the Investigating Officer not finding any empty cartridge cannot be said to be improbable.
35. Mr. Singh. submits that in the fact of admitted land dispute between the party appellants false implication cannot be ruled out. In this connection our attention has been drawn to the evidence of P.W.3 Neelam Devi in paragraph 3 of her examination-in-chief and paragraph 10 of her cross-examination where she had admitted that there is land dispute with the accused Ganauri Mahto (since dead) and appellant Kishun Mahto. In this connection our attention has also been drawn to the evidence of P.W.7 Harihar Mahto in paragraph 4 of his examination-in-chief, where he has admitted that the incident had taken place because of dispute with the family of accused Ganauri Mahto (since dead) in relation to a house.
36. It is well settled that enmity is a double edged weapon and that gives occasion for false implication and at the same time furnishes cause for committing crime. Eve witnesses to the occurrence, who are natural witnesses had supported the case of the prosecution which has been corroborated by the medical evidence as also independent witnesses, who had come to the place of occurrence immediately after the incident and found them fleeing away from there. One of the witnesses. namely, Chandrabhushan Kumar has sustained injury in the occurrence and that gives additional strength to his claim to be an eye witnesses to the occurrence. They have consistently supported the case of prosecution in all material particulars and in that view of _.the matter. the plea of the appellant of false implication on account of previous enmity is fit to be rejected. It seems that it is on account of the enmity, the offence has been committed.
37. Mr. Singh. then submits that there is material contradiction in regard to the manner in which the occurrence had taken place as also the place where the deceased was shot dead and as such appellants deserve to be given the benefit of doubt. In this connection he has drawn our attention to the evidence of P.W.1 Mukesh Kumar in paragraph 5 of his evidence, wherein he has stated that firing had taken place inside the house more than once. Our attention has also been drawn to paragraph 11 of P.W.7 Harihar Mahto wherein he has stated that before and after Nagina Mahto fired at the deceased others had also fired. It has also been pointed out that P.W.6 Chandrabhushan Kumar had stated that firing had taken place in the Gosala. I do not find any substance in the submission of the learned Counsel.
38. P.W.6 Chandrabhushan Kumar had clearly stated in his evidence that the house consisted of a room and a Gosala and in the latter, on the date of incident no animal was kept and in fact was used for residence. P.W.1 Mukesh Kumar had stated that the firing had taken place inside the house which would obviously mean that the two rooms and the land ad-joining thereto and as such. I do not find any contradiction in the evidence of prosecution witnesses in regard to the manner and place where the occurrence had taken place.
39. Mr. Singh, submits that according to the evidence of P.W.1 Mukesh Kumar, in paragraph 3 of his evidence no incident had taken place prior to the occurrence and, as such, there was no immediate cause for committing the crime. In this connection our attention has also been drawn to the evidence of P.W.3 Neelam Devi in paragraph 8 of her evidence, where she has stated that no incident had taken place for about a year prior to the occurrence.
40. I do not find any susbstance in the submission of Mr. Singh. Merely the fact that no incident had taken place within a year from the date of occurrence, it shall not necessarily lead to the conclusion that in fact no incident had taken place on the date alleged by the prosecution. As stated earlier the eye witnesses who have been examined in the case are natural witnesses and having supported the case of the prosecution in all material particulars. which also finds corroboated from the evidence of the doctor. I am of the opinion that the case of the prosecution is not fit to be rejected only on account of fact that immediately prior to the occurrence no incident had taken place.
41. Mr. Singh submits that the place where the occurrence had taken place is surrounded by several houses but no independent witness has turned UP to support the case of the prosecution. This infirmity according to Mr. Singh entitles the appellants the benefit of doubt. In this connection our attention has been drawn to the evidence of Investigating Officer P.W.9 Shyamlal Champiya in paragraph 8 of his cross examination wherein he has admitted that the place of occurrence is surrounded by a large number of houses.
42. I do not find any substance in the submission of the learned Counsel. The occurrence has taken place in the house and the family members of the deceased, who are natural witnesses to the occurrence had supported the case of the prosecution. Not only that P.W. 4 Kishori Mahto who arrived at the place of the occurrence on hearing the sun sound had seen the appellants fleeing away from the place of occurrence. The tendency of the co-villagers not willing to depose, is also well known. It is also well settled that the case of the prosecution rests on the quality of evidence and not its quantity. From what I have observed above. I am of the opinion that mere none examination of the witnesses living near the place of occurrence itself does not create any doubt in the case of the prosecution.
43. Mr. Singh, submits that the case of the prosecution is not supported by the doctor P.W.8 Dr. Ram Kumar Prasad who had conducted the post mortem examination. In this connection our attention has been drawn to his evidence in paragraph 4, wherein he has stated that only semi digested food was found in his stomach. He submits that according to the prosecution the family members including the deceased had taken breakfast and, as such the presence of semi digested food in the stomach of the deceased shows that the occurrence had not taken place at the time suggested by the prosecution. He submits that when the evidence of the prosecution witnesses is not supported by the medical evidence appellants deserve to be given the benefit of doubt. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of State of U.P. v. Rasid and Ors. 2003 S.C.C. (Cri.) 1840.
44. I do not find any substance in this submission and the decision relied on instead of supporting his contention goes against him. P.W.2 Sarita Kumari is the daughter of the Informant Harihar Mahto and according to the case of the prosecution it was she who was asked to serve food. She had clearly stated in paragraph 5 of her cross examination that the time when the incident had taken place food was ready and the family member had collected for taking food but it could not be served. In view of her evidence it cannot be said that the deceased had taken food immediately prior to the incident and, as such, the case of the prosecution is not fit to be rejected on the ground that no undigested food was found in his stomach.
45. Now reverting to the authority of the Supreme Court, in the case of Rashid (supra) the condition of food in the stomach can be a factor to determine the time of death but the discrepancy emnating on account thereof itself shall not be sufficient to discredit the case of the prosecution. This would be evident from the following passage of the said Judgment.
Herein we must notice that the High Court has also relied upon the medical evidence to show that the dead bodies of Nasir and Chheddan contained semi-digested food when the post-mortem was conducted, therefore, the High Court inferred that the incident in question must have occurred much before these two deceased had no opportunity to answer the call of nature. This is a probability which can be utilised for the purpose of determining the time of incident provided there is no other acceptable evidence. Then again we must notice before the Court decides to determine the time of death based on the stomach contents of the deceased, the Court should first find out whether there is material to show on record as to the possibility of the deceased having or not having an opportunity to go to answer the call of nature before his/her death. It is not as if every human being without exception goes to ease himself first thing at daybreak, there may be innumerable reasons not to do so, therefore, presence of semi-digested food in the stomach of the deceased as not an absolute proof of the fact that the deceased must have died before daybreak. While we do agree that this can be a factor to be taken into consideration it cannot be such a prime factor as to overrule the acceptable oral evidence which is available on record.
46. To put the record straight, I may observe herein that the deceased having not taken the food, the doctor rightly did not find any undigested food in his stomach.
47. Mr. Singh, draws our attention to the evidence of P.W.5 in paragraph 6 of his cross examination where this witness is alleged to have stated that rifle was available in the house and in such a situation the prosecution party not resisting the appellants by resorting to firing seems unnatural. I do not find any substance in the submission of the learned Counsel and in fact the aforesaid submission as emanated on account of misreading of evidence. In fact this witness in paragraph 6 has stated that they neither keep rifle or gun in the house. As there being no fire arm in the house there was no question of prosecution party resorting to it.
48. Mr. Singh, then submits that in fact the prosecution party was abusing D.W.3 Arwajo Devi and it was P.W.6 Chandrabhushan Kumar who had aimed the gun towards her but was objected to by the deceased and he sustained injuries at his hand. In this connection he has drawn our attention to the suggestion made to P.W.6 Chandrabhushan Kumar in paragraph 13 of his cross examination as also the evidence of D.W.3 Arwajo Devi. I do not find any substance in the submission of the learned Counsel. P.W.6 had stoutly denied the suggestion made to him that the deceased died of accidental fire made by him. D.W. 3 abovenamed is a married lady and happens to be the sister of accused Ganauri Mahto(since deceased). She had not disclosed this fact to the police during the course of investigation. In the face of the evidence of the eye witnesses, supported and corroborated by the medical evidence, the evidence of D.W.3 Arwajo Devi does not inspire confidence and fit to be rejected. For the same serious evidence of defence witnesses on the plea of ali bi also deserves to be rejected.
49. Mr. Singh, lastly submits that P.W.8 Dr. Ram Kumar Prasad conducted the post mortem examination had found the black inverted margin on the body and this is not inconformity with the case of the prosecution. It has clearly come in evidence that firing has not been resorted touching the body of the deceased but from a small distance and, as such, the black inverted margin on the dead body of the deceased in no way discredits the case of the prosecution.
50. Appellants Nagina Mahto, Udal Mahto and Awadh Mahto have come together armed with rifle and gun and one of them, namely, Nagina Mahto, shot dead the deceased and, as such, all of them had committed the offence in prosecution of their common object and, as such, they have been rightly convicted for offence under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code.
51. It has also proved beyond doubt that appellant Kishun Mahto had caught hold of the deceased, when Nagina Mahto shot him dead. Thus he was rightly convicted for offence under Section 302/114 of the Indian Penal Code. Aforesaid appellants have also been found possessing illegal fire-arms and therefore rightly convicted and sentenced under Section 27 of the Arms Act.
52. Appellant Birbal Mahto had caused simple injury to P.W.6 Chandrabhushan Kumar. P.W.10 Dr. R.P. Sharma had found such an injury on his person. As such, the prosecution has also brought home the charge against appellant Birbal Mahto under Section 323 of the Indian Penal Code.
53. As appellant Birbal Mahto had faced the ordeal of trial for a long time, I am of the opinion that the period undergone by him shall meet the ends of justice for offence under Section 323 of the Indian Penal Code.
54. In the result, I do not find any merit in the appeals and are dismissed accordingly with the aforesaid modification in the sentence of appellant Birbal Mahto. As the remaining appellants are on bail, they are directed to surrender forthwith to serve out the remaining period of sentence.