Patna High Court
Mohan Mahto & Ors vs State Of Bihar on 23 June, 2010
Author: Gopal Prasad
Bench: Shyam Kishore Sharma, Gopal Prasad
CRIMINAL APPEAL No.446 OF 2002
CRIMINAL APPEAL No.467 OF 2002
CRIMINAL APPEAL No.477 OF 2002
CRIMINAL APPEAL No.489 OF 2002
CRIMINAL APPEAL No.512 OF 2002
CRIMINAL APPEAL No.521 OF 2002
Against the judgment and order of conviction and sentence passed by Sri
Abinasi Saran Lal, Presiding Officer, Additional Court (I), Fast Track Court -
1, Samastipur in Sessions Trial No. 41 of 1984 / 72 of 2002.
RAMASHRAYA SAHNI @ BHAGAT JI, SON OF LATE SUBALAL
SAHNI, RESIDENT OF VILLAGE - KORBADHA, POLICE STATION -
SAMASTIPUR (MUFFASSIL), DISTRICT - SAMASTIPUR.
Appellant in Criminal Appeal No. 446/2002
SATRUGHAN RAI @ SUDAN, SON OF SRI RAM PRIT ROY, RESIDENT
OF VILLAGE - KORBADHA, POLICE STATION -MUFFASSIL,
DISTRICT - SAMASTIPUR
Appellant in Criminal Appeal No. 467 of 2002
1. MOHAN MAHTO, SON OF BIKAU MAHTO
2. RAMASHRAY ROY, SON OF CHHOTE LAL ROY
3. RAM CHANDRA MAHTO, SON OF RAUDI MAHTO, ALL RESIDENT
OF VILLAGE KORBADHA, P.S. MUFFASSIL, DISTRICT -
SAMASTIPUR.
Appellants in Criminal Appeal No. 477 of 2002
1. MOHIT SAHANI @ MOHIT SAHNI, SON OF LATE MUSAHARU
SAHANI.
2. RAM UDGAR SAHANI, SON OF LATE DORIK SAHANI, BOTH
RESIDNET OF VILLAGE - KORBADHA, P.S. - MUFASSIL,
DISTRICT - SAMASTIPUR.
3. RAM JATAN MAHTO, SON OF RAM KHELAWAN MAHTO,
RESIDENT OF VILLAGE - BHAMARUPUR, P.S. - MUFASSIL,
DISTRICT - SAMASTIPUR.
Appellants in Criminal Appeal No. 489 of 2002
1. SHANKAR MAHTO, SON OF RAMDHANI MAHTO.
2. SHIVAJEE MAHTO, SON OF RAMDHANI MAHTO.
3. DUKHIYA MAHTO, SON OF RAMDHANI MAHTO.
ALL ARE RESIDENTS OF VILLAGE - BHAMARUPUR, POLICE
STATION - MUFFASIL, DISTRICT - SAMASTIPUR.
Appellants in Criminal Appeal No. 512 of 2002
SIYA MAHTO, SON OF SANT LAL MAHTO, RESIDENT OF
VILLAGE KORBADHA, P.S. - MUFASSIL, DISTRICT -
SAMASTIPUR.
Appellant in Criminal Appeal No. 521 of 2002
Versus
THE STATE OF BIHAR ............... Respondent (in all the appeals)
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PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J.These six criminal appeals have been heard together where in Cr. Misc. (DB) No. 446 of 2002, preferred by the appellants Ramashraya Sahni @ Bhagat Ji, Cr. Appeal (DB) No. 467 of 2002 Satrughan Rai @ Sudan, Cr. Appeal (DB) No. 477 of 2002 Mohan Mahto, Ramashray Roy and Ram Chandra Mahto, Cr. Appeal (DB) No. 489 of 2002 Mohit Sahani @ Mohit Sahni, Ram Udgar Sahani and Ram Jatan Mahto, Cr. Appeal (DB) No. 512 Shankar Mahto, Shivajee Mahto and Dukhiya Mahto and Cr. Appeal (DB) No. 521 of 2002 Siy Mahto. All the appellants have been convicted under Section 302 / 34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and a fine of Rs.5,000/- each and in default of fine to further go rigorous imprisonment for one year. Further, again the appellants Dukhiya Mahto and Ram Jatan Mahto have been sentenced to undergo rigorous imprisonment for three years for conviction under Section 148 of the Indian Penal Code and other appellants have been sentenced for two years for conviction under Section 147 of the Indian Penal Code. Dukhiya Mahto has further been sentenced to undergo rigorous imprisonment for three years for conviction under Section 324 of the Indian Penal Code and Siya Mahto and Shivajee Mahto have 3 further been sentenced to undergo rigorous imprisonment for three years for conviction for offence under Section 379 of the Indian Penal Code, however, all the sentences have been ordered to run concurrently.
2. The prosecution case as alleged in the fardbeyan by the informant Yogendra Choudhary is that at 7:30 A.M on 09.05.1982 he along with his son proceeded to Samastipur by bicycle with Rs.6,000/- (six thousand) for purchase of the articles for marriage of his younger son, both of them reached at Samastipur Ujiyarpur Pitch Road after passing through Harha Chour by Kachhi Road. When they reached near Bhabhrapul on the said Samastipur Ujiyarpur road, then Shatrugan Rai @ Shudan, Ramashraya Sahni @ Bhagat Ji, Ram Dhani Mahto, Shankar Mahto, Shivajee Mahto, Ram Chandra Mahto, Dular Chandra Mahto, Siya Mahto, Mohan Mahto, Mohit Sahani, Ram Udgar Sahani, Ramashray Rai, Dukihya Mahto and Ramjatan Mahto all armed with Lathi, Bhala and Chura and Ram Jatan Mahto armed with Bhala and rest of the accused persons armed with Lathi, on seeing the informant and his son, Shatrugan Rai ordered to kill Kamashwar Choudhary so that no person be left to support Yogendra Choudhary in his old age. It is further alleged that on issuing such command all the accused persons with intention to kill his son started assaulting by Lathi causing fracture to his son and his son fell down. Further case of the prosecution is that the son of the informant tried to save the assault on his head by his left 4 hand and then the left hand got injured and broken and his son fell down. Thereafter Ram Dhani Mahto and Shivajee Mahto caught hold both the hands of the son of the informant from two sides and Shankar Mahto started assaulting on his chest and rest accused persons started assaulting him by lathi like harvesting of maize crop. It has further been alleged that the son of the informant was tossing and telling by which he got injury on the entire body and in the mean time, Dhukiya Mahto assaulted the son of informant by dagger on his head and Siya Mahto took away six thousnad rupees from the upper pocket of the shirt and Shivajee Mahto snatched the watch and Dularchandra Mahto took the cycle after the assault of the son of informant. All the accused persons took the son of informant towards the east with intention to kill and dispose of the dead body, then on the Halla of the informant, the passersby Janardan Jha (P.W. 6), Jay Kant Choudhary (P.W. (9), Bipendra Choudhary (P.W. 11), Dinesh Choudhary (P.W. 12) came and saw the occurrence. It has further been alleged that the informant has litigation with Ramdhani Mahto and due to the said litigation and enmity the accused persons with common intention, have assaulted and took the body to dispose it in unconscious stage.
3. The fardbeyan of the informant was recorded by N.C. Ganguley S.I. of Muffasil P.S. on 09.05.1982 at 9.00 A.M and thereafter the FIR was lodged and formal FIR was lodged at 4.00 P.M and after 5 investigation the charge-sheet was submitted and on submission of charge-sheet cognizance was taken and thereafter case was committed to the Court of Sessions after commitment. The charges were framed under Sections 302/34 of the Indian Penal Code against all the accused persons and against Ramjatan Mahto and Dukhiya Mahto charges were framed under Section 148 of the Indian Penal Code and rest of the persons were charged under Section 147 of the Indian Penal Code and again Dukhiya Mahto charged under Section 324 of the Indian Penal Code and Shivajee Mahto charged under Section 379 of the Indian Penal Code. After framing of the charge trial proceeded and 13 witnesses were examined on behalf of the prosecution. P.W. 1 Dr. P.C Jain Civil Surgeon, P.W. 2 Dr. Brahamanand Prasad who has conducted the autopsy on the person of the deceased, P.W. 3 Ramlagan Kumar, P.W.4 Pramod Choudhary, P.W.5 Anandee Devi, P.W. 6 Janardan Jha, P.W. 7 Jaykant Jha @ Isser, P.W. 8 Tribhuwan Das, P.W. 9 Jaykant Choudhary, P.W. 10 Jogendra Choudhary, P.W. 11 Bijendra Choudhary, P.W. 12 Dinesh Choudhary and P.W. 13 P.C. Ganguley.
4. The documentary evidence examined in this case is Ext. 1 letter in the pen and signature of Dr. P.C. Jain, Ext. 2 is the post mortem report, Ext. 3 is the FIR, Ext. 4 is the signature of Jogendra Choudhary on fardbeyan, Ext. 5 fardbeyan in the pen of Mahesh ASI, Ext. 6 report in the writing and signature of S.I. N.C. Ganguley, Ext. 7 order of S.I. 6 N.C. Ganguley to Constable Ram Sagar Rai, Ext. 8 inquest report in the pen and signature of Mr. N.C Ganguley, Ext. 9 sketch map of P.O, Ext. 10 endorsement at seven places on the sketch map.
5. The defend has also adduced oral and documentary evidence. The oral evidence adduced on behalf of the defence is D.W. 1 Kamashwar Lal, a formal witness who has formally proved Ext. A. The documentary evidence adduced on behalf of the defence is Ext. A, a certificate, Ext. B certified copy of judgment of Cr. Appeal No. 278 of 1983, Ext. B/1 is certified copy of the judgment of Civil Revision No. 721 of 1980.
6. On considering both oral and documentary evidence the trial court convicted and sentenced the appellants as stated above.
7. Learned counsel for the appellants contended that the appellants have falsely been implicated in this case out of the enmity and no occurrence as alleged occurred at and about the time, place and manner of the occurrence and the appellants have falsely been implicated due to local politics and the prosecution has not been able to prove the charges and the witnesses are partition witnesses and they have deposed falsely and hence, the prosecution has not been able to prove the charges.
8. Learned counsel for the appellants, further contended that the FIR itself is doubtful as the occurrence took place at 9.00 A.M on 05.09.1982, the FIR is at about 4.00 P.M where as the inquest report prepared at about 1.00 P.M and some of the witnesses though relation of 7 the informant but has not been named in the FIR. The mother P.W. 5, P.W. 4, P.W. 7 though the near relative and claim to be the eye witness but not named in the FIR and it has been contended that P.O is doubtful and further that the FIR is ante dated as dispatched to the Chief Judicial Magistrate after much delay and the prosecution story is not corroborated by medical evidence and ocular witnesses and further the P.O. has not been established as the witnesses have deposed about the two P.Os at two places. It has further been contended that the prosecution has not been able to prove the charges beyond reasonable doubt.
9. Learned counsel for the State, however, submitted that the witnesses have supported the prosecution case and the evidence of doctor is also corroborative as regards the time and manner of occurrence and hence, prosecution has proved the case beyond reasonable doubt.
10. On respective submission, the question for consideration is whether the prosecution has been able to prove the charges beyond reasonable doubts. Now I proceed to consider the evidence of prosecution in the light of submission made by the respective parties.
11. The prosecution case as alleged is that the informant Yogendra Choudhary proceeded along with his son at 7.30 A.M. from his house and reached at the Samastipur Ujiyarpur Pitch Road by Kacchi Road 8 passing through Harhara Chaur where the said Kacchi Road met with the bridge on the Ujiyarpur pitch Road where they reached near Bhabra bridge then they saw fourteen accused persons named in the fardbeyan were armed with Lathi and Bhala. On the command of Satrughan Rai to kill Kameshwar Choudhary, all the accused persons started assaulting the son of informant and they carried the son of the informant with intention to dispose of his body or to conceal his body. On his Halla it is alleged that Janardan Jha P.W. 6, Jay Kant Jha P.W. 7, Bipin Choudhary P.W. 11, and Dinesh Choudhary P.W. 12, reached there and it is claimed that they have seen the occurrence.
12. For convenience I proceed to consider the evidence of P.W. 1, the Doctor P.C. Jain. He has stated that he was posted at Samastipur Sadar Hospital and on that date at about 12.40 P.M Havildar, Kameshwar Choudhary who was admitted in the hospital died. After verifying the death P.W. 1 wrote to the Officer-In-Charge, Samastipur through the letter which has been proved and marked as Ext. 1. Ext. 1 is a letter regarding the intimation to the Officer-In-Charge that Havildar Kameshwar Choudhary who was admitted in the hospital with multiple injury expired and to do needful. The letter was with signature of P.C Jain with specific mention of a time 12.40 P.M dated 09.05.1982. He has further stated that the details of admission of deceased Havildar Kameshwar Choudhary would be there in the hospital and the time 9 elapsed between the death and the post mortem examination is calculated on the basis of rigor mortis or the composition of the body.
13. P.W. 2 is Dr. Brahmanand Prasad who conducted the autopsy on the person of the deceased and has stated that on 09.05.1982 he was posted at Sadar Hospital, Samastipur and on that date at 5.00 P.M he held post mortem on the body of Kameshwar Choudhary, aged about 32 years, son of Jageshwar Choudhary of village Brahmpura and found the following ante mortem injury 1. Incised wound 1" x 1/2" x mucels deep on left side of occipital parietal junction, blood clots were seen trickled down the skull from the wound, 2. Bruise 1.1/2 x 1.1/2" on front of left shoulder, 3. Bruise 2" x 3" on the back of left shoulder, 4. Bruise blueish in color 3" x 3/4" on outer portion of the left upper arm, 5. Bruise 6" x 1.1/2" on horigentally on left scapular region, 6. Bruise 3"x 3" on the left side of lower back, 7. Bruise 1" x 1/2"x 4" on outer portion of the left upper arm at its upper ends on dissection blood clots present in both side of the front of the chest on the middle beneath skin and subcutaneous tissues, 8. Fracture of sternum on upper portion, 9. Fracture of first to forth ribs on its medial end on left side, 10. Fracture of ribs on its medial portion from first to 6th. P.W. 1 has further stated that stomach contained liquid material, intestine was full of gasses and time lapse since death was within 48 hours.
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14. However, in cross examination he has stated 48 hours which he has mentioned means 12 hours to 48 hours. He has further stated that it is not necessary within 48 hours means within 36 to 48 hours. However, the occurrence is alleged to be at 7:30 A.M on 09.05.2002 and as per the evidence of the Doctor P.W. 1 victim was admitted in hospital and reported his death at 12.40 and sent the letter to the Police Officer though the admission or the treatment at the hospital has not been proved and the post mortem conducted as appeared from the evidence of P.W. 2 was at 5.00 P.M on 09.05.1982 and it mentions that the time elapsed since death to the time of post mortem is 12 hours to 48 hours. However, if the death is at 12.40 P.M as reported by P.W. 1 the initial report of the Doctor falsifies as it has been reported that the death was in between 12 hours to 48 hours where as the victim was reported to have died as per the evidence of P.W. 1 at 12.40 P.M and the post mortem examination according to P.W. 2 conducted at 5.00 P.M on the same day, that is, within four and half hours of the reported death by P.W. 1 and the evidence of the doctor regarding death appears to be contradictory to each other as per the prosecution case.
15. P.W. 3 is a formal witness who has formally proved the formal FIR.
16. P.W. 4 is Pramod Choudhary, however, he has stated in his evidence that he was going to Samastipur at about 8.00 A.M and 11 reached at the north of Mahadeva Pokhar and then saw 20 to 25 persons, out of whom he identified Satrughan Rai, Ram Dhani Mahto, Shankar Mahto, Dukhi Mahto, Ram Jatan Mahto, Shivajee Mahto, Mohit Mahto, Ram Udgar Mahto, Ramchandra Mahto, Dular Chand Mahto, all were armed with Lathi, Dhukhi Mahto armed with dagger, Ram Jatan was armed with Bhala and others with Lathi and all the persons were assaulting Kamashwer by Lathi and some person were dragging him toward east that is east of the road. He has further stated that to the east of the road there is orchard. He has further stated that he remained there for 3 - 4 minutes and that he did not identify Shivajee Mahto by face and Ram Udgar Mahto but identified others. However, this witness is stated in his cross examination that he has got no relation with Yogendra Choudhary. He has further stated that Mahadeva Phokar is about half kilometer far off from his village and the orchard where the victim was being taken is about 300 yards north of Mahadeva Phokar and the house of Yogendra Choudhary is about 150 yards south from his house and the distance between the road and the orchard is about 300 yards east. He has further stated that he saw the assault to the west of the road and the accused persons dragging the victim from there. He has further stated that at the time of occurrence there were no house in between the road and the orchard and had denied the suggestion that adjoining of the road there are houses of Ramdev Thakur, Debu Mahto, Ramchandra Sahani 12 and Mohan Sahnai. Hence, taking the topography of the P.O. as per his evidence and the place from where he claims to have seen the occurrence from which is northern portion of the Mahadeva Pokhar and has stated that P.O, the orchard, is about 200 yards to the north of the Pokhar and the road is 300 yards from the orchard to the east and the occurrence of assault was being taken place on the western side of road and if it is accepted then it is apparent that he was seeing the occurrence from more than 200 yards.
17. P.W. 5 Anandi Devi, she has stated that at about 8.00 to 8.30 P.M there was Halla in the village at her court yard at his house. Then she went to the orchard and saw that 20-30 people were assaulting Kameshwar Choudhary by Lathi and he fell down and out of them she identified Dhukiya Mahto, Ram Dhani Mahto, Ram Jatan Mahto, Ramashraya Sahni, Satrughan Rai & Sudhar but did not identify the rest but claims to identify by face. He has further stated that when she protested, then she was chased and then she directly came to the police station along with his son Krishna Chandra. She identifies accused Dukhiya, Ramdhani and Ramjatan but did not identify Ramashraya and Satrughan. But identify Mohan, Ramashraya and Satrughan by face. Further she has stated in cross examination that she does not know the name of the husband of her daughter Sunaina and denied that Janardan Jha is her son. However, she stated that on Halla that the bicycle of his 13 son was snatched, she rushed there. She has stated that 10-15 persons were on the road. She has stated that she was chased from the road side. However, she has stated that the orchard is contiguous to the road. However, she has stated that she saw that they got her son assaulted by tying the victim with a Chouki in the field. She has also stated that the orchard is about half mile from his house. She has further stated that when she was going to the police station then her husband and Daroga were coming on rickshaw and they took her also on the rickshaw. Daroga took her statement, hence, from evidence of this witness it appears that at 8.00 to 8.30 she heard Halla, she went to the orchard and saw the occurrence. However, in her cross examination she stated that there were 10-15 people at the road and from the road itself she was chased though states that the road and the orchard are adjoining and it is a Pitch Road and she saw the occurrence from the road itself and claims that the assault was being done by tying the victim on the tree and victim was crying for help and she claims blood oozing out from his mouth and she was driven out immediately. Hence, her evidence does not transpire confidence.
18. P.W. 6 is Janardan Rai, he has stated that he reached ahead Mahadeva Pokhar then saw Yogendra Choudhary and Kameshwar Choudhary going in Harhara Choudhary which is a way for pedestrian. He has further stated that he was on the road and then Yogendra 14 Choudhary and kameshwar Choudhary reached near Bhabra bridge and there 5 to 20 persons surrounded him and then they started assaulting Kameshwar Choudhary by Lathi then Kameshwar Choudhary fell down and then accused persons took him towards the orchard and Yogendra Choudhary started making Halla. However, he has claimed that he identified Ram Dhani out of them and claims that he cannot identify others even by face and hence, this witness identified only one accused, however, he is the FIR witness. He has further stated that Bhabra Bridge is about 100 yards whereas he has further stated that Bhabra Bridge is about a distance of one kilometer from Mahadeva Pokhar. However, he has stated that he has seen Yogendra and Kameshwar prior to the assault going and both Yogendra and Kameshwar were going on road, one was ahead and other was behind and has stated that both were going on foot but there was one cycle but they were going on foot. He has further stated that after proceeding about 10 to 15 Lagga the victim was surrounded and Yogendra at the time of assault went away and states that he does not remember about the chasing by Yogendra. However, this witness denied the suggestion that Yogendra Choudhary is his father-in-law. However, he has stated that he does not know the name of his wife and denied the suggestion that he knows the name of his wife as Sunaina who is daughter of Yogendra Choudhary. However, he has further stated that the name of father-in-law is Rambaran Rai. 15
19. P.W. 7 is Jaykant Jha @ Ishar, he has stated that he reached at as near the house of Hamen Mahato, then learnt that in the orchard of Hamen Mahto a Brahman is being assaulted and then he went to the orchard and then found Kameshwar Choudhary in the orchard and his body is in field with dirt and he saw Ram Dhani Mahto, Shankar Mahto, Kameshwar Choudhary had pressed his chest by Lathi and Shivajeee Mahto, Ramjatan Mahto assaulting Kameshwar Choudhary and Kameshwar was asking for help. He has further stated that Dhukihya was jumping on the chest of Kameshwar Choudhary and when he protested then he heard the sound that he is taking the side, so assault him and then he flew away. He has further stated that a cycle was there. He has further stated that Daroga had taken his statement after 5 to 10 days of the occurrence. He has further stated that he saw the wife of Kameshwar Choudhary standing there at a distance of 25 to 30 Lagga from Kameshwar and he was about 1 to 1/2 Lagga from the wife of Kameshwar Choudhary. However, though this witness claims that he learnt about the occurrence, he rushed to the orchard and saw there Kameshwar Choudhary and the wife of Kameshwar Choudhary. However, this witness stated that he saw the occurrence from the orchard and reached at orchard after learning about the occurrence at 8.00 A.M in the village.
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20. P.W. 8 is Tribhuban Das, however, he has stated that he was getting Mung crop plucked in a field of Harhara Chaur at about 7 - 8 A.M. He heard Halla then he saw 16 people were assaulting Kameshwar Choudhary at a distance of 5 - 6 Lagga. Out of them he identified Ramdhani armed with Bhala, Ramchandra Mahto armed with Bhala and Ramashraya armed with Lathi, however, he could not identify the rest. They took Kameshwar Choudhary in the orchard and in the orchard they were assaulting Kameshwar by surrounding him. However, stated that he cannot say who assaulted Kameshwar in which manner. He has further stated that this orchard is at a distance of 200 Lagga and one Lagga is six and half inch and he saw the occurrence from his field itself and did not go to the P.O. He has stated that he has no concern with the village and he did not state about the occurrence to anyone and he saw Kameshwar Choudhary from three Lagga south of Mamrapur Pull. However, this witness claims to have seen the occurrence of assault from a distance of 200 Lagga but has identified only three persons Ramdhani, Ramchandra and Ramashraya.
21. P.W. 9 has stated that while he was coming to Samastipur through Harhara Chowk to the bridge, he saw 15 - 16 persons were making Halla and they were assaulting Kameshwar Choudhary in the orchard. However, he claims to have identified only Ram Dhani Mahto and also stated that he cannot identify even by seeing the face of the accused 17 persons though identified Ramdhani in the dock. He has further stated that the bridge is at a distance of 150 Lagga from the pitch road. He did not get down from the pitch road and the pitch road is at a distance of 150 to 200 Lagga from the P.O. and from there saw the occurrence and except Kameshwar and Ramdhani he did not identify any persons.
22. P.W. 10, the informant, however, has stated in his evidence that about 7.30 he along with his son proceeded for purchasing with regard to the marriage of his second son Shideshwar Choudhary, his son proceeded with a bicycle and they proceed on Harhara Chaur and when reached at the Pakki Sarak which leads to from Ujiyarpur Samastipur Pitch Road near Bhabra Pull, then saw 20 - 25 persons armed with Lathi, Grasa, Dagger who surrounded his son Kameshwar and Satrughan Rai commanded and he identified although 14 named accused persons Ramdhani, Ramchandra, Ramjatan were armed with Bhala, Dhukiya with Chhura (dagger) Ramashraya with Garasa and rest were with Lathi and after surrounding the victim Satrughan commanded to kill so that no one leaves to support the old man and thereafter they started assaulting his son Kameshwar by Lathi as if they were thrashing the maize crop and thereafter the left hand of Kameshwar was broken. Dukhiya assaulted by Chhura on his head and then his son got unconscious and thereafter Ramjatan assaulted his son by Bhala and thereafter Ramdhani and Shivjee caught hold the hand of his son and 18 Shankar Mahato assaulted by Lathi on the chest and Siya Mahto took Rs.6000/- from the pocket of the victim Kameshwar Mahto and thereafter accused persons took his son towards the orchard saying that they will dispose of the dead body and conceal and they took the victim and he proceeded for police station. He has further stated that his statement was recorded by Ganguley Sah (Daroga) and then read him over the content and he signed and has proved his signature which has been marked as Ext. 4 and he proceeded with the police officers on rickshaw to the P.O. and when he reached at the SDO office, he met with his wife and another son and they disclosed that the accused persons have kept Kameshwar Mahto in the orchard after assault and then also proceeded with them. The victim was found in the orchard and his shirt and Dhoti was torn. The body was besmeared with dirt and blood was oozing out from several places and the son was in unconscious stage. Daroga Jee took his son to Samastipur Hospital and his son was brought to Sadar Hospital at 11.00 A.M and his son died at 12:40 P.M and thereafter the dead body was sent for post mortem at about 3-4 P.M and since post mortem was not done so he requested the D.M and then the post mortem was conducted. He identified the accused persons. He has stated in his cross examination that his son and he proceeded for Samastipur after taking bread and vegetables and they had taken the bread of wheat and vegetables of potato and reached the P.O at 19 about 7.45 A.M. He has further stated that when there was good road his son used to ride on bicycle and slowly drive and he proceeded behind him on foot itself. He has stated that the accused persons assaulted his son and when made a cry then accused persons also ran to assault him, then he any how managed to flee away and informed the police. However, his attention has been drawn regarding the weapon attributed to the appellants during his evidence and as he has stated that he does not remember whether he had alleged Ramchandra and Ramdhani having assaulted his son with Bhala before the police and Ramashraya with Garasa in his earlier statement before police. He has stated that the house of Ramjatan on his land on the Bhabra Pull and they were asking Ramjatan to leave the land as he had left his work i.e. the cause of the occurrence or quarrel. Further it is stated that to the south of his house there is a road which leads to Samastipur-Ujiyarpur Pitch Road and near Mahadeva Pokhar and on the said road bicycle, rickshaw, bullock cart, tractor pass through but the bus and truck does not pass. He has further stated that from the SDO office after proceeding for one and half kilometer they reached near the dead body and the said dead body was to the east of the road at a distance of one or half and half Rasshi and this place is at about a distance of one and half Rasshi from Samastipur Ujiyarpur road. The said land was barren land and no crop was standing and he did not pay attention that any blood had fallen there on the 20 ground or not. He also did not find that sign of tracking and he did not pay attention about the blood stained on the clothes of the victim and when the police reached there several persons were there but none was found there. He went with the police along with his injured son to take him to hospital and he took his son on rickshaw to hospital and there was injury on his son and blood oozing out from 10 to 12 places and they reached at the Samastipur Hospital at 11.30 A.M. He has further stated that the accused persons has surrounded his son but he managed to flee away to the south at a distance of 2 and 3 Lagga and remained there for half an hour and thereafter went to P.S after half an hour. However, he has stated that he met several persons but did not remember the name of the person who met him during the period. However, in cross examination he has stated that the distance between at Bhabra Pull where the occurrence took place and from where his son was dragged to the orchard is a distance of one kilometer through the road and about half kilometer if shortest distance and for going to the orchard through the Chaur. There is a Nala of Railway whose breadth is about four hand which is a Kacha Nala and its two hands ditch and through this Nala a filthy wasters flow. He has further stated that he does not remember that either in fardbeyan or further statement he had named Nago and Ramnarayan. However, the part of the evidence material regarding the distance of the P.O and the orchard where the 21 assault were made or occurrence started and the orchard in the light of the evidence at some witness has stated about the occurrence in orchard and assault. However, this witness has stated that the assault made on the road and after assault his son got unconscious and then the son was taken to the orchard with intention to dispose of the body or conceal the body. However, the witness claimed that he went to the police and till then the body was in the orchard.
23. P.W. 11 has been declared hostile and has not supported the prosecution case.
24. P.W. 12 is tendered.
25. P.W. 13 is the I.O. He has stated that at 9.00 A.M Yogendra Choudhary came and gave his statement and on his statement the FIR was lodged. He has proved the fardbeyan in the writing of Mahesh Singh ASI which bears his signature. The fardbeyan has been marked as Ext. 5. However, he has stated that after recording the fardbeyan it was sent in the town P.S to lodge the FIR and on that basis the formal FIR was instituted and he proceeded to the P.O. and at 10.25 A.M he reached in the orchard of Hament Mahto and found the Kameshwar Choudhary in injured stage and his entire body was found in the field with dirt as it appears that he has been assaulted after dragging his shirt and dhoti was found to be torn stage and he was in unconscious stage and was not in a position to give any statement. There were several 22 injuries on his body and after giving the injury report he was sent to hospital. He has proved the report in his hand which has been marked as Ext. 6. He sent the injured to hospital with constable Ram Sagar Rai and recording that he has also proved his order which has been marked as Ext. 7 thereafter he instigated the P.O Pagdandi leading from his house through Harhara Chaur. He came to the road near pull and the said Ujiyarpur Pull and the Road in the north leads to Samastipur. He has further stated that he proceeded to hospital to take the statement of Kameshwar Choudhry and there he got the O.D slip about the death of the victim. Thereafter he prepared the inquest report and has proved the inquest report which has been marked as Ext. 8. He also saw the papers of litigation between the parties are several cases are going on. He has stated that he took the statement of Bipendra Choudhary.
26. P.W. 11 however, Bipendra Choudhary has been declared as hostile and attention has been taken regarding his earlier statement and thereafter he submitted the charge sheet after taking the order from S.P. However, during cross examination the contradiction has been taken regarding the attention drawn to the witness and has stated that Pramod Choudhary had not stated that he saw the occurrence from getting down his bullock cart. He has stated that the evidence of Janardan Jha was taken on 10.05.1982. He has further stated that he recorded the statement of Tribhuban Das on 13.07.1982 and he has not stated before 23 him that Ramdhani and Ramchandra were armed with Bhala or Ramashraya armed with Lathi.
27. P.W. 10 has not stated before him that accused rushed to assault him and hence from the evidence.
28. From the evidence of I.O it is apparent that the statement of Janardan P.W. 6 and Tribhuban P.W. 8 was taken on 10.05.1982 and 13.07.1982. However, the contradiction has been taken that the attention has been drawn to P.W. 8 in which he has not stated that Ramchandra and Ramdhani were armed with Bhala. However, he has stated that from Mamra Pull to orchard the P.O. distance has not been mentioned and he did not mention about the blood found between Bhabra Pull to the orchard. He has also stated that he did not found any sign of dragging and has explained that the Rasta is open. He has further stated that he found Kameshwar Choudhary injured and he did not find blood at the P.O. and he got the O.D slip in the hospital itself that he died. The O.D. slip was given by P.C Jain P.W. 1 and thereafter the inquest was prepared. However, he has stated that he got the post mortem report on 12.06.1982 and he recorded in the diary and from reading the post mortem it appears that something wrong but he has not mentioned in the case diary. The time elapsed since death till the post mortem examination has been shown to be 48 hours. However, he did not 24 enquire from the doctor and did not take any instruction from the senior officer on this point nor drew their attention.
29. Defence witness examined as proved the document only to show the alibi as Ext. A has been proved. Hence, taking into consideration the entire evidence since the informant claims to have seen the occurrence and have alleged that he was going to Samastipur with his son by a bicycle but with 6,000/- for purchase of articles for marriage of his younger son but his son was on bicycle and he was behind 20 - 25 persons surrounded his son and assaulted him and though alleged that there is litigation with him and then alleged that there is litigation with him but they killed his son by assault that on death of his son no one will help but strangely none assaulted him (informant). However, in his evidence he says that he was chased and he fled away and it is stated that an accused person assaulted his son on the Pitch Road by which his son got unconscious and fell down and then he was taken by the accused persons to dispose of his dead body or to conceal the dead body and informant went to the police station. The police proceeded with informant and it is stated in way while he was coming with the police he met with his wife in the way and then he came with the police and the son was found unconscious and then he was taken to hospital. However, the fardbeyan was taken at about 9.00 A.M and then the police sent the son of the informant to the hospital. However, it is stated that he was 25 admitted in the hospital and so far the evidence of P.W. 1 doctor that the deceased died at 12.40 P.M in the hospital, no paper regarding his injury admission in hospital or injury report has been proved. If he had been admitted in the hospital then the papers regarding his admission or his treatment paper or the injury report ought to have been procured and proved. Moreover, P.W. 2 who has done autopsy on the person of the deceased has stated that the post mortem was done at 5.00 P.M on 09.05.1982 and in his report he has stated that death is in between 12 to 48 hours. However, the death has been proved by the doctor P.W. 1 at 12.40 PM, post mortem was done at 5.00 P.M, that is, only after four and half hours but the doctor P.W. 2 who did autopsy has deposed and reported time elapsed since death and post mortem is about 12 hours to 48 hours and hence either the report of the P.W. 1 is wrong or the report of P.W. 2 is wrong and this also casts a doubt whether the victim was alive when the police reached at the orchard. However, at the trial, two P.Os have been stated; one is said to be at the pitch road where the occurrence is alleged to have started and where the informant alleged to have assaulted took place first and the informant in his evidence has stated that all injury and injury was inflicted there by which his son got unconscious then he was again assaulted on his chest and thereafter he was taken away for disposal of the body. However, the P.W. 5 the mother of the victim claims that she heard at his house about the assault 26 which is about one or half kilometer mile away from the P.O and then she came and state that she saw from the pitch road about the assault in the orchard and she claims that she saw the occurrence in the orchard from the road and it has come that the distance between the orchard and the road where the first occurrence took place is more than about 200 yards and Lagga.
30. P.W. 4 also claims to have seen the occurrence from the Mahadeva Pokhar and has stated that from Mahadeva Pokhar to orchard is about 200 yards or Lagga and the distance between the road and orchard is about 300 yards.
31. P.W. 7 stated about the assault in the orchard and has stated that Ramdhani and Shankar were only there at the orchard who had pressed the chest of the victim where as P.W. 8 has stated that in orchard the victim was being assaulted by surrounding the accused persons.
32. P.W. 9 has also stated that he saw the occurrence from Pitch Road which is at a distance of about 150 to 200 Lagga. However, it is question for consideration whether a person could see and identify a person from a distance of 150 to 200 Lagga or even of 200 yards. However, the case of the informant is that the victim was assaulted by various weapons and got unconscious and taken in unconscious stage from the place of the occurrence. According to him occurrence occurred at about 7.30 to 7.45 AM, the other witnesses stated that they saw the 27 occurrence at about 8.00 AM at orchard and further P.W. 4 claims to have identified nine persons.
33. P.W. 5 claims to have identified one person.
34. P.W. 6 claims to have identified one person Ramdhani who is not amongst the appellants. P.W. 6 and 9 claims to identify one person Ramdhani who is not appellant and P.W. 7 and 8 also claim to identify this Ramdhani and P.W. 7 claims further to identify one Shankar Mahto, hence having regard to the facts and circumstance that several witnesses have stated different version and different P.O. and claims to see the accused from long distance which does not appear to be probable. According to the informant and the prosecution case itself it is clear that assaults were made and thereafter the accused persons took away the victim in unconscious stage. However, some other witnesses have stated about the assault at the orchard. The I.O has made a map of the P.O. which has been marked as Ext. 6 and the witnesses claim to have identified the accused persons from a distance of 150 to 200 yards and some stated 150 to 200 Lagga. The I.O in his evidence as also given the topography and though the I.O. claims that the victim was alive when he came to the P.O. and he sent the victim to the hospital, and P.W. 1 in his evidence has stated that the victim died at 12.40 P.M. However, the prosecutions have not procured any documentary evidence suggesting the remand of the victim in hospital or treatment. However, the P.W. 2 28 doctor who has done the autopsy has not made any indication about the surgical interference with the injury or about any bandage on the wound and there is allegation of Chhura but no dagger injury on the head and P.W. 8 and 9 did not identify any person except Ramdhani and none of the witness stated about the details of the manner of the occurrence, about the assault with a specific weapon. Further the four witnesses alleged to have come to the P.O and whose name mentioned in the FIR has not come to support the prosecution case as P.W. 6 has named only one Ramdhani. P.W. 7 Jay Kant has stated that he went in the orchard and from there he saw the occurrence whereas the case of the informant is that the occurrence took place at the Pitch Road and on halla Jaykant came on the Pitch Road and hence, the evidence of Jay Kant is not all reliable and morever, Jaykant has named only Ramdhani and P.W. 11 and 12 Bipin and Dinesh who are FIR witness, have not supported the prosecution case as have been declared hostile and have been tendered and hence, taking into consideration the entire evidence of the prosecution witnesses does not inspire confidence and their evidence suffer from various improbabilities and their evidence about their ability to see the occurrence from 200 yards or 200 Lagga, does not inspire confidence and hence, taking into consideration the entire facts and circumstances, I find and hold that the prosecution has not been able to prove charges leveled against accused persons beyond reasonable 29 doubts and hence, the order of conviction and sentence passed by the lower court is hereby set aside and the appeal is allowed.
(Gopal Prasad, J.) Shyam Kishore Sharma, J.
(Shyam Kishore Sharma, J.) Patna High Court, Patna The 23 June, 2010 NAFR. / Kundan