Patna High Court
Kapil Deo Mahto vs State Of Bihar on 7 November, 2012
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha, Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.382 of 1990
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Manik Chandra Mahto son of late Sheonandan Mahto resident of village Manikpur,
P.S. Suryagarha, Distt-Munger.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
With
Criminal Appeal (DB) No.424 of 1990
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Kapildeo Mahto son of late Sheonandan Mahto resident of village Manikpur, P.S.
Suryagarha, Distt-Munger.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mrs. Vimala Kumari, Amicus Curiae
For the Respondent/s : Miss. Shashi Bala Verma, APP
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
and
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 7-11-2012 Cr. Appeal No. 382 of 1990 wherein Manik Chand Mahto happens to be appellant and Cr. Appeal No. 424 of 1990 wherein Kapildeo Mahto happens to be appellant, commonly originate against the judgment of conviction and sentence dated 8 th of August 1990 rendered by Additional Sessions Judge-VI, Munger in Sessions Trial No. 694/86 holding both the appellants guilty for an offence punishable under Sections 302/34 of the IPC and sentencing them independently to undergo RI for life, have been heard together and are being disposed of by this common judgment.
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2. The prosecution case as per Fardbeyan of Sheela Devi (PW-3) given to the police officer on 27.04.1986 at about 1:00 p.m. in village Usraha Taal in Tesjha in brief is that her husband late Jawahar Mahto had three brothers out of whom her husband was the eldest and was followed by two other younger brothers namely appellants Kapideo Mahto and appellant Manik Chand Mahto. She has also stated that both her father-in-law and mother-in-law, living together with the appellants Kapildeo and Manik Chand had died whereas her husband, Jawahar Mahto (deceased) was living separately. She has also claimed that the partition of most of land between the aforesaid three brothers had already taken place and only a piece of 30 Katthas of land was kept as a joint family property for meeting the expenses in the marriage of their sister Madhu Devi. According to informant though such marriage of the sister of the appellants and her deceased husband namely, Madhu Devi, had already taken place some three years back but the aforementioned piece of land kept in jointness in the name of three brothers was still continuing and the two appellants, Kapildeo Mahto and Manik Chand Mahto had forcibly also usurped the share of 10 Kathas of land of her husband, Jawahar Mahto (deceased).
3. In her fardbeyan she had further alleged that at about 8:00 a.m. on 27.04.1986 while her husband Jawahar Mahto (deceased) along with his brother-in-laws, the two appellants, 3 Kapildeo Mahto and Manik Chand Mahto were winnowing of Khesari crop, a verbal altercation amongst them had taken place because her husband Jawahar Mahto had asked for his share in the crop grown of the aforementioned 10 Katthas of his land, forcibly occupied by the two appellants, Kapildeo Mahto and Manik Chand Mahto. The informant has specifically alleged that in the midst of such verbal altercation, appellants Kapildeo Mahto and Manik Chand Mahto had picked up a wooden plank(Phatti) used for rowing of boats and had started chasing her husband with a view to assault him. The informant has also stated that having seen this part of the collective bid of both the appellants for assaulting her husband, she had raised hulla and had run towards the eastern side following the appellants as well as her husband and on her such hulla Jagdish Mandal (PW-2), Ram Prasad Mahto (PW 1) working in their Khalihan along with several other persons had reached and ran towards her husband Jawahar but he having been chased by the appellants was assaulted by them by the aforesaid wooden Phatti near Usraha Taal in the village Tesjha in course of which he was thrown on the ground and had started crying with pains. The informant has also claimed that when she with others had reached near her husband, they had found her husband, Jawahar to be dead and had also seen the appellants Kapildeo Mahto and Manik Chand Mahto running away towards eastern side. According to the informant one Sahendra Mahto (not examined) who was returning 4 from Bazar had also seen both the appellants fleeing away from the place of occurrence. With these facts the informant had alleged in the fardbeyan that her husband Jawahar Mahto (deceased) was done to death by the appellants Kapildeo Mahto and Manik Chand Mahto by the wooden Phatti used for rowing the boat.
4. On the basis of aforesaid Fardbeyan Suryagarha P.S. Case No. 100/86 under Sections 302/34 of the IPC was registered whereafter the investigation was commenced by the police, resulting into submission of charge-sheet against both the appellants. The case was subsequently committed to the court of sessions and ultimately in the trial both the appellants were convicted and sentenced by the impugned judgement, giving rise to these two appeals.
5. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that appellants/accused are innocent and they have been falsely implicated in this false and concocted case by the informant, a wayward dubious woman who was falsely claiming herself to be wife of deceased Jawahar Mahto only with a design to grab the landed property of the share of the deceased Jawahar Mahto. In this regard a specific plea of defence had been taken by both the appellants that deceased himself was a patient of epilepsy and actually died a natural death on account of his illness.
6. Assailing the findings recorded by the trial court in the 5 impugned judgment with regard to guilt of the appellants, it has been submitted by the learned counsel for the appellant that the trial court had acted in a pre-determined and arbitrary manner and on account thereof the impugned judgment impugned is fit to be set aside. It has further been argued on behalf of the appellants that from the evidence on the record it would be apparent that there are series of inconsistent and inherent contradiction in the evidence of PW-1 as well as PW-3, the father and daughter, as with regard to the factum of the alleged marriage of the deceased with the informant learned counsel for the appellants has also submitted that status of PW-3, the informant, might be that of mistress of deceased and from her conduct as well as inconsistent stand reflected in her evidence in court it would be more than clear that this case has been purposely launched in a pre-planned manner simply in order to claim, grab the property falling under share of Jawahar Mahto, the deceased.
7. In the same vein it has also been contended that true it is, that any body can bring the criminal law into motion but, when a particular kind of claim was sought to be advanced by the informant and when in the aforesaid background, a criminal prosecution was also launched then under such situation the conduct of the party has to be also taken note of. In this regard, it has been also submitted that from the evidence, it would become evident that neither PW-1 nor PW-3 are eyewitnesses to the occurrence because of the fact that they 6 are wholly inconsistent in their alleged presence including their arrival at the alleged place of occurrence. It has thus been seriously contented that when their status as an eyewitness is de-recognized and discarded their rest of evidence would be of no avail. It has also been explained by the learned counsel for the appellant that during course of inspection of the alleged place of occurrence, PW-1 the father of the informant had not even shown Khalihan to I.O. wherein he had actually claimed his presence for becoming an eyewitness. In likewise manner with regard to arrival of PW-3 at Khalihan along with her husband (deceased) and appellants it has been claimed to be suspicious due to glaring inconsistency persisting in the evidence of both PW-1 and 3.
8. It has further been argued on behalf of the appellants that from the evidence of PW-3 it would be crystal clear that whatever motive for the alleged occurrence has been shown by her in the Fardbeyan was actually not found to be subsisting because of the fact that deceased had himself already executed a sale deed in favour of these two appellants long ago. From the evidence of PW-3, it has also been pointed out that the deceased had in fact already sold away his almost entire land which he had got through partition and thus taking into account the quality of the evidence adduced on behalf of the prosecution, the finding recorded by the trial court in the impugned judgment can not be justified either on fact or in law. 7
9. It has further been submitted that the objective finding of the I.O. also did not give a supportive link to the prosecution case on account of absence of concrete finding with regard to alleged place of occurrence and thus conviction of appellant would amount to giving undue favour to prosecution and would be contrary to spirit of law.
10. It has been accordingly submitted that the version of defence with regard to death caused on account of epilepsy of the deceased would inspire confidence specially when it is fully supported from the evidence of doctor who had categorically stated in his cross-examination that the injuries on the deceased could be possible on account of fall on hard surface.
11. Per contra Miss Shashi Bala Verma, learned APP while supporting the findings of the trial court had submitted that the entire prosecution evidence had to be considered as a whole and not in a piece meal manner inasmuch as from evidence available on record, it was quite evident that the status of PW-3, the wife of the deceased in capacity of informant was reliable and creditworthy. Miss Verma had also submitted that though prosecution could not examine a number of witnesses but then the evidence of PW-3 alone, having remained unshaken, by itself would be sufficient to prove to prosecution case. In this regard, she has also placed reliance on the evidence of the investigating officers as also the Doctor, who according to her, fully support the version of informant PW-3 8 inasmuch as both the investigating officers had found ante-mortem injury on the person of the deceased, husband of the informant, PW-3 which was also corroborated in the evidence of the Doctor conducting postmortem on the person of the deceased. Strong reliance has also been placed by her on the confession of guilt by appellant Manik Chand, who according to learned APP, was apprehended on the same day by the Investigating Officer and his such confession had also resulted in the recovery of the wooden Phatti at a place pointed out by him. In the light of these submissions learned APP is of the view that the impugned judgment would require no interference of this Court.
12. Before we would analyze and adjudge the merit of the case, in the light of aforesaid rival contention of the parties it has to be indicated that from perusal of record it is manifest that the prosecution had examined altogether six witnesses out of whom PW-1 is Ram Prasad Mahto, PW-2 is Jagdish Mahto, PW-3 is Sheela Devi, PW-4 is Dr. Anirudh Prasad, PW-5 is Ram Sharan Singh and PW-6 is Nageshwar Roy, the investigating officer (I.O.).
13. With regard to status of the witness, PW-1 happens to be the father of PW-3 the informant while PW-2, Jagdish Mahto though supported the prosecution case to some extent but having subsequently resiled for his earlier statement was declared hostile. PW-5 is formal in nature who had simply exhibited formal FIR. PW 4 is the Doctor and PW 6 is the I.O.
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14. Side by side prosecution had also exhibited Ext-1 series, signature of respective witnesses over inquest report, production list, Ext-2 postmortem report, Ext-3 formal First Information Report, Ext-4, Fardbeyan, Ext-5 inquest report, Ext-6 production list and apart from them it had also exhibited material exhibit (i) and (ii), namely, the „phattha‟ being the alleged weapon of assault as well as blood stained soil seized from the place of occurrence.
15. The defence has however not examined any witness nor has it exhibited any documentary evidence.
16. In order to appreciate the ocular evidence it looks pertinent to scrutinize the medical evidence. PW-4 is a doctor who had conducted postmortem over the dead body of deceased Jawahar Mahto on 28.04.86 at 8:15 a.m. and found the following ante-mortem injuries:-
" A lacerated wound 3"x1" bone deep on left parieto occipetal area of scalp placed obliquely from lower end of left parietal to upper end of left side of occipital bone.
On dissection haematoma and blood clot underneath the scalp found. On further dissection depressed multiple fracture with laceration of menineitis brain matter found. fractured bone in left parietal bone and occipetal bone. Blood clot was found in menineitis and brain matter."
In the opinion of the doctor death was due to injuries to vital organ (brain) caused by hard and blunt substance leading to 10 shock and haemorrhage. Time elapsed since death according to PW 4 was 24 to 36 hours. During cross-examination the doctor had said that if a person is suffering from fit and epilepsy and would fall on hard and blunt substance, injuries of such type could be caused.
17. PW-1, Ram Prasad Mahto, the father of PW-3, Sheela Devi, the informant, in his examination-in-chief in court had stated that at about 8:00 a.m. on the date of occurrence while he was in his Musahri Khalihan he had seen both the appellants Kapildeo Mahto and Manik Chand Mahto engaged in discussion with the deceased, Jawahar Mahto as with regard to apportionment of the crops of their field. He had further stated that PW 3, Sheela Devi, the wife of the deceased Jawahar i.e. his daughter was sitting over there and in course of the verbal altercation between the brothers, i.e., two appellants and the deceased Jawahar, he had seen appellant Kapildeo Mahto to have chased Jawahar with a wooden Phatti used for rowing of the boat and when Jawahar had ran towards eastern side, the other appellant Manik Chand Mahto had also followed him along with brother appellant, Kapildeo. PW-1 had further stated that when Jawahar Mahto (deceased) had reached in the field of Ranjeet Choudhary, it was the appellant Kapildeo who had cornered and caught him and had given blows by fist and slap as also had assaulted him with Phatti. He has further stated that both the appellants Kapildeo and Manik Chand had thrown the deceased Jawahar on the ground whereafter appellant 11 Kapildeo had given the fatal blow by the wooden Phatti on Jawahar, the deceased, whereafter both the appellants had run away to eastern side. PW-1 had also proven his signature on the inquest report prepared by the police officer.
18. In his cross-examination, PW 1, had stood firm with regard to his being stationed in Musahri Khalihan at the time of occurrence and had also stated that his daughter was happily married with the deceased and had a son aged about 5 to 6 years. He had also disclosed the distance of his Khalihan from the Khalihan of appellants, Kapildeo to be 8 to 10 bamboos in the west and had given the topography of his Khalihan which was situated by the adjoining Khalihan of Radhey Mahto, Garib Pahalwan and Bholu Kahar. He had further stated that appellant, Kapildeo had his Khalihan in his own land where Jagdish Mahto (PW-2) and Rameshwar (not examined) had also their Khalihan. PW-1 had also stated in his evidence that at the time of occurrence the crop of wheat was being winnowed in his Khalihan while others were yet to arrive in their respective Khalihan. He has also gone to support the prosecution case with regard to appellant Kapildeo being busy in winnowing of his crops of Khesari in his Khalihan and in this regard he had also given the time of the deceased going to the Khalihan to be about 7:15 a.m. in the morning. According to PW-1 the wife of the deceased and his daughter namely Sheela Devi (PW-3) had reached at the Khalihan 12 after one hour of arrival of her husband Jawahar, the deceased. He had also asserted that the deceased Jawahar had his no separate Khalihan rather he was also having a joint Khalihan along with appellant Kapildeo. He had also denied the suggestion that the deceased Jawahar was working on daily wages as a Mazdoor of any person.
19. In his evidence in court, PW-1 had also clearly stated that when the deceased Jawahar had reached at Khalihan appellant, Manik Chand was already winnowing Khesari crops and when the deceased, Jawahar Mahto had asked for his share of Khesari from appellant Manik Chand, it had led to verbal altercation between Jawahar and Manik Chand whereafter appellant Kapildeo had chased Jawahar and the latter had run away. He had also stated that no one came from Khalihan to rescue Jawahar Mahto who had fallen down on the ground in the field of Ranjeet Choudhary. According to PW-1, it was only after half an hour of the assault on Jawahar that 50 to 100 persons had gone to the place of occurrence but by that time both the appellants, Kapildeo Mahto and Manik Chand Mahto had escaped away. It is however, significant to note that PW-1 in his evidence in court had stated that his daughter, Sheela the wife of deceased had reached the place of occurrence almost after 45 minutes of the arrival of PW-1.
20. PW-1 in his further cross-examination had denied the suggestion that he had sent any person to the police outpost but had 13 admitted that Chaukidar had come over there after almost one hour of the occurrence. PW-1 had also stated that he did not narrate the occurrence to the Chaukidar but the Chaukidar had himself given information as with regard to the occurrence at the police outpost. He had also categorically denied the suggestion of meeting of minds between him, his daughter, Sheela( PW-3), Jagdish (PW-2) and Sahendra (not examined). PW-1 had also stated that his daughter, Sheela had given her statement to the police in his presence and on her Fardbeyan both he and Sahendra had put their signature in capacity of attesting witnesses. According to PW-1 he had remained at the place of occurrence for the whole of the day and till the dead body was sent for postmortem at about 12:00 a.m. in the night to Munger. The dead body of Jawahar according to PW-1 was cremated at Munger. He had also stated that he had returned to his village only on the next day at about 3:30 p.m. after starting from Munger at 11:00 a.m. He had further claimed that he had met the police after two days. As with regard to the manner of assault he had stated that both the appellants had assaulted the deceased Jawahar with wooden plank (Phatti) of the boat and such assault had caused injury on the back portion of the head of Jawahar (deceased). He had further given distance of the field of Ranjeet Chaudhary from the Khalihan of appellant, Kapildeo to be 5 to 7 bamboos at best. He had also categorically denied the suggestion that he was not present at 14 Khalihan and that he had not seen the occurrence or given false evidence with a motive to usurp the land of the appellants or that the appellants had not assaulted Jawahar the deceased.
21. A critical examination and evaluation of the evidence of PW-1 would no doubt support the submission of learned counsel for the appellants that there are material contradiction in his evidence inasmuch as he had never disclosed as to what point of time he had reached at Khalihan so as to even witness the arrival of the deceased at Khalihan, roughly about 7:15 a.m. Admittedly, PW- 1 had no reason to be at Khalihan of appellant Kapileo prior to 7:15 a.m., at point of time when even the verbal altercation for division of crops had not commenced. His further narration that his daughter Sheela, PW-3 had reached the place of occurrence, where the deceased was assaulted, only after 45 minutes would make his testimony shrouded with mystery specially when he had not even mentioned that he had followed the deceased and the accused persons from their Khalihan to the field of Ranjeet Choudhary which according to was at a distance of 5 to 7 bamboos from the Khalihan of appellant, Kapildeo. PW-1 also cannot be held to be wholly reliable because his evidence in court does not tally with the narration given by PW-3 the informant on all the material points, be it genesis emanating from the verbal altercation on the point of division of crops or the deceased being chased by appellants before 15 being given fatal blow by wooden plank of the boat (Phatti) in the field of Ranjeet Choudhary. This Court therefore, would rule out PW-1 to the eyewitness to the entire occurrence and on his showing, he at best can be a hearsay witness as also claimed by the informant PW-3 in her Fardbeyan wherein she had stated that on hulla raised by her after seeing her husband to be chased his father PW-1 along with PW-2 had arrived. It is further evident from para-6 of the evidence of PW-1 that he had not shown his Khalihan to I.O. where he claimed to have his presence at the time of occurrence which is also fully corroborated by the evidence of PW-6 the I.O. Thus in view of our aforesaid analysis PW-1 can not be held to eyewitness to the entire occurrence and from his evidence it would appear that he has only tried to corroborate the version of the informant PW-3, his daughter.
22. PW-2 is Jagdish Mahto who was named in the FIR as an eyewitness to the subsequent part of occurrence beginning from chase of the deceased by the appellants and culminating into the assault by the appellants. In his cross-examination in the court, he had claimed that he was going to Piri Bazar when he had heard hulla raised by PW-3 and he had also seen the deceased Jawahar running and being chased by both the appellants. He has claimed that he had also followed the deceased as well as the appellants and was accompanied by many persons including Sheela Devi, (PW-3) wife of 16 deceased. According to PW-2 it was after covering a distance of more than half a mile that appellants had caught hold of the deceased and had started assaulting him but PW-2 did not stop over there and had proceeded ahead on a cycle which he was riding in course of chase of the deceased. He had also firmly stated that in his examination-in- chief that he did not see any of the accused persons to have assaulted the deceased and he was accordingly declared hostile by the prosecution.
23. In the cross-examination by the prosecution PW-2 had denied his entire earlier statement given to the police and had also refuted the further suggestion of the prosecution that he had gone in collusion with the accused persons (appellants). He however, had admitted that his signature on the production list. In his further cross- examination by the defence he had admitted that Jawahar, Kapildeo, and Manik Chand were full brothers and that the wife of Jawahar namely, Sheela Devi (PW-3) was usually residing at her father‟s place on account of strained relationship between her and her husband, Jawahar, a fact which was disclosed to him by the deceased himself. To this extent, one could have understood the purpose of cross- examination of PW-2 by the defence who had already been declared hostile by the prosecution but then it is very significant to note that the following suggestion was given to the PW-2 by the defence itself which for a better appreciation is being reproduced in verbatim:-
"AISI BAAT NAHIN KI HUM CYCLE SE 17 PIRI BAZAR JA RAHE THE, AUR JAWAHAR, KARU, MANIK MAHTO KO TINO BHAIYON KO LATPATATE, MAAR-PEET KARTE NAHI DEKHA." which if translated into English would read as follows:-
" it is not a fact that I was not going by cycle to Piri Bazar and I had not seen Jawahar, Karu and Manik, all the three brothers grappling and assaulting".
24. Thus, even from the evidence of PW-2, a hostile witness not only the status of PW-3 in capacity of wife has been confirmed but the story of chase by both the appellants leading to grappling and assaulting gets some sort of support. What would be the effect of such suggestion given to PW-2 by the defence has to be understood in context of the prosecution case introduced by PW-3 where she had given the detailed version of such occurrence at both the points, the first one taking place in the Khalihan of the appellants and the second one of the assault after chase in the field of Ranjeet Chaudhary. As a matter of fact, when PW-2 was suggested by the defence itself that it was not a fact that he was going to Piri Bazar on his own bicycle and he had not seen Jawahar, Kapildeo and Manikchand grappling and assaulting, it would mean that defence itself had given a suggestion that in spite of being declared hostile by the prosecution as he had failed to support the prosecution case as given by him to the police, he was still an eyewitness to the occurrence. In this background PW-2 even being 18 after declared a hostile by prosecution can be relied for supporting the part of prosecution case as with regard to the appellants chasing the deceased and indulging in the act of grappling and assaulting on the deceased. In such a situation, we will have no difficulty in looking into the evidence of PW-2 to the extent he has supported the prosecution case inasmuch as it is by now well settled that the evidence of a hostile witness cannot be rejected as a whole. Somewhat in a similar situation, the Hon‟ble Apex Court in the case of Tarun Bora v. State of Assam reported in 2002 Cri. L. J. 4076 had taken into account the effect of suggestion of this nature and had held as follows:-
"We have already noticed that in cross- examination of PW-1 a suggestion was put to him that appellant-Tarun Bora had neither participated in blind-folding him nor assaulted him. This is clearly indicative of the presence of the appellant and participation in the kidnapping episode".
25. In the background of the fact that both PW 1 and 2 only have partly supported the prosecution case, we must adopt due care and caution in examining the evidence of PW-3 Sheela Devi, the wife of the deceased who remains the only other witness to support the prosecution case. PW-3 in her examination-in-chief had firmly stated that the appellants Kapildeo and Manik Chand were brothers of her husband, Jawahar and partition of entire property of family, except a piece of land kept in jointness for the marriage of 19 their sister, had already taken place and that after partition her husband was residing separately from his two brothers Kapildeo and Manik Chand who were living in jointness. She had also stated in her examination-in-chief that on the alleged date and time of occurrence she along with her husband had gone to Repra Musahri Khalihan and her husband had asked for his share of his crops of the land kept in jointness confining his claim of the crops of 10 Katthas out of total One and half Bigha. She had also stated that even after the marriage of her sister-in-law, the sister of the appellants and the deceased, it were the appellants who were cultivating the land also of the share of her husband. In her evidence in the court, she had further stated that when her husband had asked for his share from appellant, Manik Chand, the latter had asked him to lay his claim of such share before appellant Kapildeo who was lying down in the same Khalihan and when her husband went to appellant Kapildeo, the verbal altercation took place leading to chase of her husband by both the appellants and their reaching Usraha Taal wherein the appellant Kapildeo was armed with a wooden plank of the boat (Phatti). PW-3 has claimed that she also having seen her husband being chased had run along with the three brothers and had reached Usraha Taal where she had seen appellant, Kapildeo to have assaulted her husband with the a wooden plank of the boat (Phatti). In her evidence in court she had also stated that she had requested 20 the appellants to leave her husband but by that time her husband out of the impact of the injury on his person had already fallen down and started crying in pains and after some time he had also died whereafter the accused persons had also fled away from the place of occurrence.
26. In her cross-examination, she has remained firm almost on all the material points inasmuch as in para-3 of her cross- examination she has stated she was married to the deceased, Jawahar a year and a half earlier to the occurrence and the partition between the three brothers had taken place before her marriage in which her husband had been allotted with only 2 Bighas of land while the appellants, Kapildeo and Manik Chand had retained 5 Bighas each in their share out of total land of 12 Bighas. In para-6, she had also stated that 1 Bigha and 10 Katthas of land had remained in jointness in the name of three brothers for marriage of their sister and one of such plot was lying in Musahri Taal and that her sister-in-law, Madhu Devi had got married on her own wishes. Though this part of her narration was contrary to her statement before the police wherein she had stated about the marriage of Madhu Devi taking place three years earlier to the occurrence but then that would hardly make any difference even on the issue of genesis inasmuch as she has remained firm about the family land of 1 Bigha and 10 Katthas being kept in jointness for the purpose of 21 marriage of Madhu Devi, her sister-in-law and the sister of the deceased as also of the appellants. PW-3 has also remained firm on the issue of her own marriage and had disclosed that not only her husband but even appellant, Manik Chand had got married as per their own wishes and the family members of her husband including her father were opposed to her marriage with deceased.
27. In her further cross-examination PW-3 had admitted that the house in which the deceased was living was actually constructed by his father and was the old house and his father-in-law in his life time was residing with his other two sons namely, appellants, Kapildeo and Manik Chand. She has also explained about her own family. In para-10 and 11 of her cross-examination she had firmly denied the suggestion that the Fardbeyan given by her was on the basis of tutoring of his father PW-1. She had also denied that she had talked with any other person at the place of occurrence and that she had actually given the names of the witnesses in her Fardbeyan on her own. Though, this witness was cross-examined at length even on the issue of sale of some land of the family by her husband, she had clearly stated that it was on account of deceit and pressure tactics of her father-in-law and appellant Kapildeo that her husband had been forced to sell some of the land but then this aspect would never amount to any material contradiction.
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28. PW-3 in fact, has remained firm that her husband was not suffering from epilepsy nor he was being treated for such disease and that she was residing with her husband after her marriage with him. In para-15 of her cross-examination she had clearly stated that she used to go to her Khalihan off and on and on the date of occurrence she had accompanied her husband to Khalihan at 7:00 a.m. in the morning. She had also remained firm that her husband had no other Khalihan and when she was sought to confused on the issue of marriage of her sister-in-law, she had reiterated the fact which had already been clarified by her in the earlier part of her evidence. In para-16 of her cross-examination she was confronted with her earlier statement given to the police and having replied them, as a rustic witness can from his or her own memory after almost two years of the occurrence, she had claimed to have reached at the place of occurrence first followed by many villagers which does not get contradicted in any manner even after examining the evidence of I.O, PW-6 in paragraph no. 10. This Court would also not find any material contradiction on the point of her arrival in the field of Ranjeet Chaudhary where the deceased was given the fatal blow inasmuch as whatever has been stated by her in paragraph-18 of the cross-examination as with regard to the manner of occurrence and the number of assault would only go to show the plight of a helpless wife who had seen her husband being 23 brutally assaulted and killed. The criticism of her evidence by learned counsel for the appellant that before the police she had stated that her husband had also died before her arrival at the place of occurrence has been itself explained by I.O. in his evidence in paragraph no.10 wherein he had said the PW-3 had stated before him that her husband having fallen down in great pains and that he had succumbed to the injuries by the time PW-3 had reached near her husband.
29. Thus, on a close analysis of the evidence of PW-3, the informant, it is absolutely clear that she had firmly stated about the occurrence wherein her husband the deceased was done to death. She has also remained consistent either on the point of genesis starting from the verbal altercation for division of crops or to have arrived at the place of assault closely on the heels of the accused persons, the appellants enabling her to see the manner of assault. In fact, when she has clearly stated about the appellant Kapildeo giving the fatal blow in presence of the appellant Manik Chand who too was chasing her husband, it has to be held that this witness could not be shaken on the material points either with regard to place of occurrence or manner of occurrence. In fact, the medical evidence as discussed above would also support the ocular evidence of PW-3 inasmuch as in the postmortem report also such injuries on the person of the deceased have been found.
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30. This Court, therefore, will have no hesitation in accepting the evidence of PW-3 as truthful eyewitness also keeping in view that she is the unfortunate victim whose husband was killed in presence of her own eyes and thus, was not likely to spare the assailants of her husband. The submission of learned counsel for the appellants that PW-3 being the wife was interested witness has to be only noted for its being rejected inasmuch as it has been held times without number both by the Apex Court as also this Court that an eyewitness to the occurrence cannot be discarded only on account of being related to the deceased. As a matter of fact, she has also given the last nail in the coffin of the defence case in para-19 of her cross- examination where she had denied the suggestion that deceased, Jawahar had fallen down on account of epilepsy and had met with his natural death. It has to be kept in mind that in earlier part of her cross-examination she had firmly denied her husband to be suffering from the disease of epilepsy and thus, the defence case as put forward also in the statement of the appellants under Section 313 Cr.P.C. that the deceased had died on account of his old disease of epilepsy has no legs to stand and in fact such defence would only certify the case of prosecution as with regard to the death of the deceased in a melee. There being nothing more brought by the defence on this score by way of a chit of paper as an evidence as with regard to deceased suffering from epilepsy, such defence case 25 of the appellants has to be only noted for its being rejected.
31. The importance of circumstance put to an accused under Section 313 Cr.P.C. cannot be minimized specially in the light of answer given by the accused by way of an explanation. Reference in this case may be usefully made to the judgment of the Hon‟ble Apex Court in the case of Bable @ Gurdeep Singh Vs. State of Chhattisgarh Tr.P.S.O.P Kursipur reported in 2012 (3) BBCJ 483 (SC) wherein at para 14 it has been held:-
"14. The legislative scheme contained under the provisions of Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C) is to put to the accused all the incriminating material against him and it is equally important to provide an opportunity to the accused to state his case. It is the option of the accused whether to remain silent or to provide answer to the question asked by the Court. Once the accused opts to give answers and, in fact, puts forward his own defence or the events as they occurred, then the accused is bound by such statement and the Court is at liberty to examine it in light of the evidence produced on record"
32. From the record, it transpires that apart from an explanation of the deceased suffering from epilepsy offered during course of statement recorded U/s 313 Cr.P.C., the appellants have not cared to support the same by producing any evidence. Thus, such bald explanation in absence of supporting evidence led by defence has no significance in the eye of law.
33. That would bring us to the question as to whether the testimony of solitary witness should be taken into consideration for 26 inflicting or upholding conviction upon the accused that too in light of being an interested witness like in the present case of PW 3 being the wife of the deceased. In the case of Takdir Samsuddin Sheikh v. State of Gujrat & Anr. report in 2012 Cri.L.Journal 621 at para-10 the aforesaid situation has been explained by the Apex Court in following manner:-
"10. The complainant Shri Bharat Rajendraprasad Trivedi (PW-1) is the sole eye- witness. It has been submitted on behalf of the appellants that being a sole and an interested witness, his evidence cannot be relied upon without corroboration. The submssions advanced in this respect had been that Shri Bharat Rajendraprasad Trivedi (PW-1) being a partner in the Firm would be beneficiary in the transaction of land involved herein in case one partner had been eliminated and other partner landed in jail. Such an argument is not acceptable for two reasons:
(i) While appreciating the evidence of witness considering him as the interested witness, the court must bear in mind that the term „interested‟ postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason. (Vide;
Kartik Malhar v. State of Bihar, (1996) 1 SCC 614:
(1995 AIR SCW 4540 : 1996 Cri LJ 889); and Rakesh & Anr. v. State of Madhya Pradesh, JT 2011 (10) SC 525).
(ii) This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness.
That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or 27 otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See:
Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of Delhi, (2003) 11 SCC 367 : (AIR 2004 SC 552 :
2003 AIR SCW 6026); Namdeo v State of Maharashtra, (2007) 14 SCC 150 : (AIR 2007 SC (Supp) 100: 2007 AIR SCW 1835); and Bipin Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638: (2010 AIR SCW 4470)). "
34. That would leave us to analyze the evidence of PW-6, the I.O. who in his examination-in-chief had stated that on 27.04.1986, he was posted at Manikpur Naka and had heard a rumour of a dispute amongst the brothers leading to the murder of Jawahar Mahto, the deceased. He had stated that he had gone to the place of occurrence, recorded the Fardbeyan of PW-3, Sheela Devi whereafter he had prepared inquest report at a lonely place in Bahiar which was in the field belonging to one Ranjeet Choudhary wherein the dead body of deceased was found near the eastern ridge. He had further disclosed that there was injury over back of the deceased and there was also blood around the earth near his mouth. He had given full description of the place of occurrence by disclosing the boundary. He had also claimed that he had returned back to the police station and thereafter he had sent the dead body for 28 postmortem.
35. In his examination-in-chief, PW-6, the I.O. had also stated about recording of further statement of Sheela Devi as also Jagdish Mahto (PW-2) and Ram Prasad Mahto (PW-1) and Sahendra (not examined). He had also claimed that on getting confidential information he had conducted raid and had apprehended Manik Chand and had also recovered a wooden plank of the boat (Phatti) as pointed out by him from a place shown by the appellant Manik Chand and for which a production list was prepared in presence of witness including PW-2, a fact which was also acknowledged by PW-2 even after his being declared hostile. He had also proved the material exhibit in form of the Phatti, a wooden plank of the boat having kanti nails over it as also blood stained soil as Ext-1 and Ext-2.
36. In his further cross-examination, PW-6 had given his reasons for identifying both PW-1 and the deceased inasmuch as he had explained that a day or two earlier to the occurrence he had been informed by them as with regard to the dispute between the brothers. He had further reiterated as with regard to hearing a rumour of the death of a person on which he had gone to the place of occurrence and had given time of 11:55 a.m. when such information with regard to the murder of the deceased was received by him. In his cross- examination he had also satisfactorily explained about both part of 29 the place of occurrence, the first one being the Khalihan near Repura Musahri which was at a distance of 3/4 Kilometer of the field of Ranjeet Choudhary which was the second place of occurrence. He had stood firm as with regard to the field of Ranjeet Choudhary which according to him was revealed by the people present at the place of occurrence at the time of his inspection of place of occurrence. As with regard to the production of material exhibit the wooden plank of the boat (Phatti) he had stated that the same was brought in the court by Choukidar on his orders from Suryagarha police station and that there could be no question of signature of appellant Manik Chand on the seizure list because he had not taken appellant Manik Chand to the place from where wooden plank was recovered. He had, also, denied the suggestion that it was PW-1 who after three days of occurrence had produced before him, a wooden plank of the boat (Phatti) on which he had prepared production list. In his further cross-examination, he had stated that he could recover the Phatti, a wooden plank of the boat containing nails at a place disclosed by appellant Manik Chand. He had further denied the suggestion that the appellant Manik Chand was arrested from his house. PW-6, I.O. had also given the details of the statement of PW- 3 before him.
37. Thus, from the critical analysis of the evidence of PW-6, the I.O. it could be safely said that he has more or less 30 supported the prosecution case though from his evidence it is also evident that he did not make sincere effort to know about the person having their Khalihan adjacent to the Khalihan of appellant Kapildeo nor had he disclosed with regard to presence of Khalihan of PW-1 near the place of occurrence. There is, of course, absence of signature on the seizure list of the appellant Manik Chand which would put the question mark as with regard to the recovery of the Phatti, a wooden plank of the boat in the manner stated by him specially when it was claimed by him that such seizure of Phatti was made from a place as disclosed to him by appellant Manik Chand. The aforesaid theme, apart from having been demolished under para-6 and 7 by way of variance in evidence on this very score, is also found to be suspicious in the background of the fact that neither in the examination-in-chief nor during course of cross-examination, nay the seizure list Ext-6 does suggest as well as inspires confidence with regard to recovery of material exhibit (i) and exhibit (ii) at the instance of appellant/convict Manikchand. Therefore, the recovery so alleged by the prosecution in pursuance of disclosure made by appellant/convict Manikchand becomes suspicious and unreliable and in the aforesaid background cannot get privilege of Section 27 of the Evidence Act. However, with regard to other objective finding recorded by PW-6 the I.O. relating to place where dead body was found the same has remained intact.
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38. A question therefore, would also arise as to how far the aforementioned discrepancy as with regard to recovery of Phatti would weaken the prosecution case. It has been well settled that not each and every weakness or error committed by I.O. would by itself demolish the otherwise believable prosecution case fully supported from the ocular evidence and medical evidence. Reference in this connection may be usefully made to the judgment of Hon‟ble Apex Court in the case of Kathi Bharat Vajsur & Anr. v. State of Gujarat reported in 2012 Cri. L.J. 2717 wherein it has been observed as follows:-
"14. It is now well settled that in a criminal trial the guilt of the accused must be proved beyond reasonable doubt, in order to convict him. This court in the case of State of U.P. v. Krishna Gopal, (1988) 4 SCC 302: (AIR 1988 SC 2154), held (para 13 of AIR):
"25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond 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 particular to each case. Referring to of probability amounts to 'proof' is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says:
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events 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 establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from 32 justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts. are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts 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.
26. 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 probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.".
"15. In the case of Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445: (AIR 1990 SC 209), it is observed (paras 4 & 5 of AIR):
"4........ The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggeration devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
5. The conscience of the court can never be 33 bound by any rule by that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to investigated."
39. Thus, in the light of aforementioned discussion we will have no difficulty in reaching to the conclusion that despite some of the discrepancies in course of investigation of the case by PW-6, the I.O. it would not materially affect the prosecution case. The charge against both the appellants have been proven on the basis of deposition of PW-3 the informant, the wife of the deceased being a reliable eyewitness whose evidence also receive some sort of independent corroboration from the other witnesses i.e. PW-1 and PW-2, at least in part, if not as a whole. In the light of our above findings we will have no difficulty in holding that the prosecution has been successful in proving its case against the appellants beyond reasonable doubt. Thus, both these appeals are devoid of any merit and are accordingly, dismissed.
40. Both the appellants are on bail and as such their bail bonds are hereby cancelled with a direction to them to surrender before the trial court to serve out their remaining part of sentence. Patna High Court (Mihir Kumar Jha, J) (Aditya Kumar Trivedi, J) November 7th 2012 Perwez /AFR