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3. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of the informant Triveni Mahto (PW 11), recorded by the S.I. Ramji Prasad of Meral Police Station on 16.10.1999 at 23.30 hours at village-Purwara, Tola-Meral. The informant (PW 11) is not the eye witness of the alleged occurrence. On 16.10.1999 at about 11.00 p.m. he was going to sleep at night. He heard alarm coming from Durga Mandap. He came out and on enquiry, he came to know that his son Ram Chandra Mahto and nephew Bhuneshwar Mahto as also Ram Nath Mahto were abducted by the extremists, who were in uniforms. He rushed to Durga Mandap where he was informed that 15 to 20 extremists in police uniforms, armed with rifles, surrounded the house of Bhola Mahto near Durga Mandap where his son Ram Chandra Mahto and nephew Bhuneshwar Mahto were playing cards along with others. The extremists inquired about their names on which his son and nephew disclosed their fake names. The appellant Umesh Mahto (Cr. Appeal No. 1047 of 2003) disclosed their real names, informing the extremists. The extremists having been disclosed the real names of Ram Chandra Mahto and Bhuneshwar Mahto by appellant Umesh Mahto, caught both of them, informing them that their days are complete. Thereafter, the extremists went to the house of Ram Nath Mahto and asked to open the door on the plea that some materials to perform Durga Pura is sought. When Ram Nath Mahto came out of the door, he was caught hold by the extremists. Sobran Mahto, son of Ram Nath Mahto, informed the informant that amongst the extremists he identified the villagers Bijay Mahto. Sanjay Mahto (both appellants in Cr. Appeal No. 995 of 2003), who were armed with rifles and saw them taking away Ram Nath Mahto. Out of fear, the villagers did not chase the extremists, who went towards east of the village. The informant heard the sound of firing. After some time of firing, Meral Police went to the place of occurrence and chased the extremists. The dead body of Ram Nath Mahto was found on the village road, having fire arm injury on his head, in a pool of blood. There was fired empty wades of rifles. When further proceeded ahead, at village-Akalbani near Sheo Temple on the road, leading towards village-Kumbhi, near a mango tree, the dead bodies of Ram Chandra Mahto, son of the informant, and Bhuneshwar Mahto, nephew of the informant, were found in a pool of blood, having injuries of fire arms. There also fired empty wades of rifles and one pumplet were found. In the pumplet the extremists have alleged that the deceased were torturing the villagers with the help of the police and the responsibility to cause three murders were taken by the People's War Group under the banner of C.P.I. (ML). The alleged occurrence took place only due to dispute of landed properties in between the deceased and Harkhan Mahto. Rabindra Mahto son of Harkhan Mahto has joined the extremist party, a banned organisation, who was in custody at that time. He had tried once to abduct Ram Chandra Mahto and Ram Nath Mahto to commit their murder but they managed to escape. One month prior to the alleged occurrence, Bijay Mahto, appellant in Cr. Appeal No. 995 of 2003 and Nanhku Mahto had picked up quarrel with Ram Chandra Mahto (deceased). Since then Bijay Mahto, his father Baijnath altos Nanhku Mahto and Harkhan Mahto were threatening to cause their murder. Ten days prior to the alleged occurrence, Bijay Mahto with the help of Uday Sao son of Harkhu Mahto had published pumplet in his printing machine alleging against Ram Chandra Mahto. The villager Ganga Mahto had informed 5/6 days prior to the alleged occurrence that Bijay, Sanjay (both appellants in Cr. Appeal No. 995 of 2003), Umesh and Subhash (both) appellants in Cr. Appeal No. 1047 of 2003) with the help of Harkhan Mahto, Harkhu Mahto, Baijnath alias Nanhku Mahto and the notorious extremists Loha Singh had planned to eliminate Ram Chandra Mahto, Bhuneshwar Mahto and Ram Nath Mahto with the help of these appellants. Loha Singh is the maternal uncle of appellant Bijay Mahto. The informant did not pay any need to this information, given by Ganga Mahto to him. On the basis of the fardbeyan (Ext. 3) Meral P.S. Case No. 97 of 1999 was registered on 17.10.1999 at 7.30 a.m. whereas the information was received in the police station on 16.10.1999 at 23.15 hours regarding an occurrence, alleged to have taken place on 16.10.1999 at 23.00 hours. The First Information Report was received in the Court of learned Chief Judicial Magistrate on 18.10.1999. After investigation, charge sheet was submitted against these appellants along with four others, namely Baijnaith Mahto alias Nanhku Mahto, Harakhan Mahto, Uday Sao and Harkhu Mahto, who were acquitted by the learned 4th Additional Sessions Judge, Fast Track Court, Garhwa, after considering the evidence of 12 prosecution witnesses, examined on behalf of the prosecution and five defence witnesses, examined on behalf of accused and convicts.

5. Assailing the judgment and order of conviction and sentence, passed by the learned Court below, the learned counsel for the appellants in both the Criminal Appeals has submitted that although it was Saptmi (7th day) of Durga Puja festival and a number of villagers had assembled at Durga Mandap near the house of Bhola Mahto, but the independent witnesses have not been examined by the prosecution. In support of this contention, he has placed reliance on the decisions of the Supreme Court in the cases of State of Rajasthan v. Sri Teja Singh and Ors., reported in 2001 (1) East Cr C 224 (SC), wherein, it has been held that "Where testimony of interested witnesses was not corroborated by the independent witnesses and there were other infirmities in the prosecution case, accused held entitled to acquittal." It is further submitted that in this case although persons were jointly tried by the learned Court below, only these four appellants were convicted, acquitting the others on the same evidence that they were also seen in police uniforms and are alleged to be the extremists. The learned Court below has not considered the evidence of five defense witnesses whose evidence has to be assessed at par with the prosecution witness and has relied on a case, reported in 2000 (3) East Cr C 927 (SC) (State of Uttar Pradesh v. Baburam) in which it has been held that "depositions of witnesses whether they are examined on the prosecution side or defence side or as Court witnesses are oral evidence in the case and hence the scrutiny thereof shall be without any prediction or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a Court witnesses. Its judicial scrutiny which has warranted in respect of the depositions of all the witnesses for which different yardsticks can not be prescribed as for those different categories of witnesses." It was further submitted on behalf of the appellants that the prosecution witnesses have not seen committing murder of three persons by anyone of the appellants, as deposed by PWs 1 to 6, 9 and 10, who are only relatives and highly interested witnesses except PW 2 who is independent village witness. The interested and closely related witnesses have given contradictory statements to each other and have falsified the prosecution version on all major counts, which was erroneously, illegally and improperly relied by the learned Court below while arriving at an erroneous finding of conviction and sentence, passed against these appellants. PW 11 Triveni Mahto is a hearsay witness whose statement is based on the information, given by the villagers. Even he has not visited the place of occurrence, his fardbeyan was recorded at 11.30 p.m. and by that time the other villagers and eye witnesses were also there, who also chased the assailants along with the police. No incriminating article was recovered from the possession of these appellants. The fardbeyan was prepared later on, giving concoction and embellishment to the prosecution case to implicate these appellants falsely due to enmity regarding landed properties and also due to village rivalry. One Sobran Mahto, son of deceased Ram Nath Mahto, who informed the informant, has not been examined by the prosecution. The other witnesses Baldeo Mahto and Ganga Mahto, who informed the informant about the alleged occurrence and the threatening given by the extremists to eliminate those three deceased, have also not been examined by the prosecution. And Bhola Mahto in whose house Bhuneshwar Mahto and Ram Chandra Mahto were playing cards was neither made accused nor witness by the prosecution. The others, who were seen in the police uniforms out side the house of Bhola Mahto have also not been made accused by the Investigating Officer. On these grounds it was submitted that the appellants deserve acquittal, giving them benefit of doubt.

7. The defence has examined DW 1, Ganga Mahto, DW 2 Latif Ansari, DW 3. Samindra Ram, DW 4 Kasim Sheikh and DW 5 Ganesh Sah, who have virtually given character certificates to these appellants DW 1, is Ganga Mahto, who had forewarned the informant Triveni Mahto (PW 11) that these appellants along with other extremists had planned to eliminate Ram Chandra Mahto, Bhuneshwar Mahto, who were son and nephew of the informant, and one Ram Nath Mahto of the village, alleging that they use to torture the villagers with the help of police. The informant did not care for the information, given by DW 1 Ganga Mahto. Ganga Mahto has not been examined on behalf of the prosecution. Had he been examined, he only would have given the circumstances regarding the murder of three persons but as a defence witness he has stated that on the day of the alleged occurrence he along with Uday Sah, Sub-has Mahto, Umesh Mahto (Both appellants in Cr. Appeal No. 1047 of 2003) and Harakhan Mahto was in the Durga Mandap where drama was being played. He heard that the extremists came and abducted all the three deceased. He has given certificate that these four appellants in both the Criminal Appeals are not the extremists. On the other hand, all the three deceased were informer of the police and hence the extremists to teach a lesson, caused their murder. He has further deposed that none of the villagers is the member of the extremist organization. DW 2 has also deposed that the appellants were not the extremists and so also DW 3, DW 4 and DW 5 have deposed. When the evidence of PW 1, PW 2, PW 3, PW 4, PW 5 and PW 6 is considered, I find that there is corroborative evidence that these appellants in both the Criminal Appeals were armed with rifles in police uniforms and abducted Ram Chandra Mahto and Bhuneshwar Mahto from the house of Bhola Mahto where they were playing cards and the same group of extremists went to the house of Ram Nath Mahto where they asked to open the door, taking plea that Puja materials got short, which are required. When the door was opened and Ram Nath Mahto came out, he was also dragged by the extremists. PW 5 Fekni Kunwar, wife of Ram Nath Mahto, saw her husband being dragged. She begged the life of her husband but the extremists, who were in police uniforms, armed with rifles, did not listen to her. When considered, the evidence of defence witnesses, who have given good character certificates, stating that these appellants of both the Criminal Appeals, are not the members of the extremists, has got no leg to stand. In view of this fact, the authority relied by the learned defence counsel in the case of State of Uttar Pradesh v. Baburam, (supra) is not applicable in the facts and circumstances and evidence of the present case.

11. Now the question arises as to whether the four appellants in both the Criminal Appeals were responsible for causing murder of the three persons after abducting them from the house of Bhola Mahto and from the house of Ram Nath Mahto.

12. PW 8 Krishna Nath, I.O. of this case, having heard the sound of firing went to Village - Purwara, Tola - Meral, chased the assailants, followed by the villagers, recorded the fardbeyan of the informant (PW 11), who is hearsay witness, whose son and nephew were abducted and murdered, prepared inquest reports and recorded the statements of the witnesses. The alleged occurrence took place at about 11.00 p.m. night on 16.10.1999. Soon thereafter, when the I.O. went there, he recorded the fardbeyan at 11.30 p.m. on the same day i.e. 16.10.1999. He did riot enquire regarding the activities of Bhola Mahto in whose house deceased Ram Chandra Mahto and Bhuneshwar Mahto were playing cards along with others. The house of Bhola Mahto is very near to the Durga Puja Man-dap. Although deceased Ram Chandra Mahto and Bhuneshwar Mahto and others were playing cards in the light of Dhibri but the prosecution witnesses have deposed that the light of generator was also coming into the verandah of Bhola Mahto where cards were being played and also there was light of the generator up to the house of Ram Nath Mahto. He has mentioned the names of extremists as disclosed by Kameshwar Mahto in the case diary, who has disclosed the names of these appellants Bijay Mahto amongst the extremists. PW 3 Kameshwar Mahto, an independent village witness, had gone to chew betel near the betel shop, situated at Durga Mandap. He was taken by Bhola Mahto, Ram Chandra Mahto, Bhuneshwar Mahto, Murli and others to play cards in the house of Bhola Mahto. He was also playing cards. Bhola Mahto, for a moment came out of his house and again entered into his house. This witness saw Nanhku Mahto, Harkhu Mahto and Harakhan Mahto standing outside the house in police uniforms, armed with rifles, along with 15/20 extremists. Out of them, he identified appellants Bijay Mahto, Sanjay Mahto, Subhash Mahto and Umesh Mahto. He could not identify the others. Thus, he has corroborated his earlier version, deposed in his statement under Section 161 Cr.P.C. regarding presence of these appellants in police uniforms, armed with rifles. Although he has exaggerated in his evidence in Court that the hands of Ram Chandra Mahto and Bhuneshwar Mahto were tied and were dragged by the extremists, assaulted them and uttering the words that it was the last day of their lives. Thereafter, as per his deposition they fired resulting the death of both of them and one Ram Nath Mahto, who was abducted from his house only due to longstanding land disputes.