PRAYAG MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment of the conviction and sentence passed by the then 4th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 144 of 1990 whereby and where-under the convict-appellant Prayag Mahto along with another Gopal Singh had been convicted under Section 396 of the Indian Penal Code and sentenced to rigorous imprisonment for life each.

(2.) The prosecution case runs that a dacoity being committed at the house of informant PW 3 Brahmdeo Prasad in the intervening night between 26th and 27th September, 1989. The house of the informant is situated at village Matukdih under Kodarma P.S. The house of the informant consisted of two parts; one the old house being a khaparposh one and just contiguous to it a new house has been built having two stories. On the night of occurrence informant and his family members were sleeping in the old khaparposh house while his brother Bishun Prasad Yadav was sleeping in the upper floor of the new house and other family members were sleeping on the verandah on the ground floor of the new house. In the night just after 12 mid-night sounds of breaking up of doors and bomb blasts were heard by the informant and the family members. The informant could find that both the houses had been surrounded by 25-26 persons being armed with fire-arms and also bombs. He went up to the roof of the old house and therefrom he saw the dacoits breaking open the doors of the house and according to him he could recognise one of the dacoits as Prayag Mahto the accused-appellant. At that time also he heard gun shot fires being used by his brother Bishun Pd. Yadav from the upper floor of the newly constructed house and in course of cross-firing he could hear the voice of the wife of his brother, that his brother was shot dead by the dacoits. It is the further case of the informant that the father of the informant and one servant were also injured by the dacoits during the course of dacoity and many valuables had been looted away by the dacoits. After the dacoits left, the informant went to the new house and found his brother Bishun Pd. Yadav lying dead with fire-arm injuries and he was reported by the wife of the deceased, namely, PW 4, Mrs. Yashoda Devi that she could recognise two dacoits who had been entered inside the house namely the accused-appellant Prayag Mahto and Kesho Mahto. It was further stated by her that it was Kesho Mahto who had fired shot on her husband. Villagers had assembled at the place of occurrence in the early morning and then police also came after hearing the incident. It is also the prosecution case that Ajit Kumar, PW 2 nephew of the informant who was then sleeping in the verandah of the newly constructed house had also identified the accused-appellant Prayag Mahto amongst the dacoits. When police came to the place of occurrence in the morning hours P.W. 3 Brahmdeo Prasad made his fardbeyan naming Prayag Mahto to be one of the dacoits and he further stated that he would be able to recognise some other dacoits also if produced before him. On the basis of the First Information Report a case had been registered. Place of occurrence was visited and physical features of the place of occurrence had been noted down by the Investigating Officer. Inquest was held over the dead body of Bishun Pd. Yadav and for autopsy the dead body was sent by challan. During the course of autopsy PW 1, Dr. Ved Brat the Medical Officer could find that the death was caused due to the firearm injury on the temporal region of the deceased Bishun Pd. Yadav. The accused-appellant had been arrested during the course of investigation. His house was also searched but no booties could be recovered. In course of investigation the co-accused Gopal Singh was also apprehended and a T.I.P. was held wherein the co-accused was also identified by some of the family members of the informant. After charge-sheet was filed under Section 396 of the IPC the case was committed to the Sessions and charges were framed under Section 396 of the IPC vide order dated 24.4.1991 before the trial Court. When the charge was read over and explained to the accused-persons they pleaded not guilty. Defence case as is appearing from the materials on record is nothing but totally denial of the prosecution case and of false implication. During the course of trial, prosecution side examined as many as nine witnesses. Out of them three are eyewitnesses to the occurrence, namely, PW 2, Ajit Kumar the nephew of the informant, PW 3 Brahmdeo Prasad the informant and the eye-witnesses to the occurrence, PW 4 Mrs. Yashoda Devi sister-in-law of the informant and wife of deceased Bishun Pd. Yadav who was killed in the incident. PW 5 Umesh Kumar has just been tendered. PW 6 Ramswaroop Bhagat is a seizure witness. PW 7 Ganga Pd. Sharma had been tendered. PW 8 Pashupati Nath Singh is the Investigating Officer and PW 9 Ram Chandra is the Judicial Magistrate who had conducted the TIP wherein the co-accused Gopal Singh had been identified by some of the inmates of the informant. PW 1 Dr. Ved Brat is the medical officer who held autopsy over the dead body of Bishun Pd. Yadav. After considering the evidence on record the learned trial Court came to the finding that the prosecution could be able to prove the charge against both the accused-persons and hence convicted them and sentenced them as mentioned above. It has already been mentioned that a defence has got no specific case except that of denial of the prosecution case and of false implication. The other convict appellant Gopal Singh has not preferred any appeal. Only Prayag Mahto has preferred appeal against the conviction and sentence as mentioned above.

(3.) The whole prosecution case pivots round the identification of the accused-appellant, during the course of dacoity by the three family inmates as already mentioned above i.e. PWs 2, 3 and 4. The convict-appellant Prayag Mahto is admittedly a close door neighbour of the informant as he had his house just opposite to that of the informant intervened by a road. It is also an admitted fact that the informant and his family members had got enmity with Prayag Mahto since prior to the occurrence as litigations were going on between the parties on land dispute. In the light of such backdrop the prosecution case regarding identification is required to be considered. PW 2 Ajit Kumar stated in his evidence that while the dacoits were making attempts to break open the gate he woke up and had seen the dacoits who were armed with fire-arms and bombs. He got himself hidden inside his cot and from there he could identify one of the dacoits, namely, Prayag Mahto but he did not state as to from what position he could identify the accused-appellant and as to what act the accused-appellant was doing at the time of identification/recognition. It was stated that a lantern was burning but no such lantern has been seized by the Investigating Officer. Whether it was possible in the dark-night by the light of the lantern which was allegedly burning in the verandah the dacoits could be identified at a distance who were then outside the gate, has not been explained by this witness and very peculiarly this witness has stated that he has got reported of his identification to the informant PW 4.