SAHDEO MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS Criminal Appeal is preferred by the above named accused -appellants under section 374(2) of the Code of Criminal Procedure (hereinafter referred to as the Code) against the judgment of conviction and sentence so passed by the learned 1st Additional Sessions Judge, Deoghar dated 18th of May, 1987 in Sessions Case No. 58/78/1/86 by virtue of which all the five accused -appellants are convicted under section 302/34/149 of the Indian Penal Code (hereinafter referred to as I.P.C.) as well as under section 148 I.P.C. and each of them is sentenced to undergo rigorous imprisonment for life under section 302 read with section 34 I.P.C., no separate sentence is passed by the learned court below for their also being convicted under section 302/149 and section 148 I.P.C.

(2.) THE prosecution case, in short, as given by the first informant Chandra Narayan Jha alias Manan Jha (P.W. 9) in his written report is that on 23.8.77 at about 7 O' clock in the morning when the first informant along with his cousin Satya Narayan Jha alias Sona Jha, since deceased, had gone to see their fields of village Simaria and Singhpurlogidih and were on way returning home and reached Mauza Jogidih and were passing through the house of Baski Mahto, since deceased, towards their home that the accused -appellants were so located, out of whom accused Sahdeo Mahto, Wakil Mahto alias Kamleshwar Mahto and Titu alias Tutka Mahto were found armed with Tangi and the other two accused - appellants Genda Mahto and Dineshwar Mahto were found with dagger and they were being surrounded by the accused persons. At that time, according to the first informant, his cousin Satya Narayan Jha alias Sona Jha was moving 20 -25 steps ahead of the first informant. The accused -appellants are said to have started inflicting injuries on the person of Satya Narayan Jha alias Sona Jha, since deceased, and at a distance of 25 -30 hands the informant (P.W. 9) claimed to have made hue and cry as a result of which Chhotu Prasad Singh (P.W. 1), Paltu Mehra, not examined, Kashi Nath Jha (P.W. 2) and Badri Narayan Jha (P.W. 6) assembled who had also an occasion to see the occurrence on assault. Accused Basuki Mahto, since deceased, as per the prosecution case, had also assaulted Satya Narayan Jha alias Sona Jha with Lathi. Satya Narayan Jha alias Sona Jha could not be rescued by the informant and the witnesses seeing the occurrence just out of fear. The accused persons also used to threaten the witnesses as not to prevent them committing the overt acts, otherwise they would also be done to death. Because of the injuries so sustained by Satya Narayan Jha alias Sona Jha, as per the prosecution case, he fell down at the place of occurrence and breathed his last. Other eye witnesses, having an opportunity to see the assault on Satya Narayan Jha alias Sona Jha, according to the first informant, had also an occasion to see the cousin of the first informant Satya Narayan Jha alias Sona Jha being then dragged by the accused persons to the nearby house of the accused persons whereby his dead body is said to have been concealed. By attributing the genesis of the occurrence, it is further detailed that accused persons were having land dispute with the members of the prosecution side and some of the litigations were, at that time, even going on between the parties. On the basis of the written report so given by the first informant, formal F.I.R. was so drawn up and the police, after registering the case, started investigation against the accused -appellants. After taking cognizance of the offence case record was so committed to the court of sessions and after hearing on the point of charge, charges were so framed against the accused -appellants under section 302/34, also under section 302/149 and under section 201 and 148 I.P.C. The accused -appellants pleaded not guilty and claimed to be tried.

(3.) LEARNED counsel appearing on behalf of the accused -appellant has submitted that the impugned judgment of conviction and sentence so passed is bad in law as well as in facts. All the witnesses so examined can well be said to be interested witnesses and except P. W. 1, all others are on the point of occurrence and the members of the same family and since there was also enmity going on between the members of the prosecution side with that of the accused -appellants selating to a piece of land said to have been purchased by the members of the prosecution side from the ancestor of the accused -appellants, the evidence, particularly of P. Ws. 2, 6, 8 and 9, cannot be said to be wholly reliable, the benefit of which should have been given to the accused -appellants. By referring to the evidence of P. W. 5, it is also pointed out that the same belies the presence of P.W. 1 at the place of occurrence. The manner of occurrence, so put forward, it is also pointed out, can well be said to be unbelievable and the graphic description so given by the P. Ws. relating to the accused -appellants approaching variously armed and assaulting Satya Narayan Jha alias Sona Jha can well be said to be concocted story so put forward whereas as per the defence version so put that Satya Narayan Jha alias Sona Jha, since deceased, having illicit connection with Paddu Mahto's wife, his house also being near the place of occurrence and it was because of the neighbour carrying annoyance that on the said morning Satya Narayan Jha alias Sona Jha was caught by the neighbour of Paddu Mahto and being assaulted, he breathed his last and that the accused -appellants had absolutely nothing to do with the occurrence and they had not, in any way, assembled or committed any offence coming under the purview of section 302 read with section 34 or even committing any offence coming under section 148 I.P.C. It is also pointed out that true it is that the litigation was going on between the parties but the prosecution had utterly failed to indicate the immediate cause of annoyance which, as alleged, led to such occurrence and that being the position, even the genesis of the offence so committed is also not brought on record. The investigation so conducted which resulted in the submission of the chargesheet in the instant case can also be said to be tainted and the earliest version relating to the occurrence is also so suppressed and delay in examination of the witnesses, particularly of P.Ws. 2 and 6, though being examined next day, had thus given ample opportunity in the hands of the prosecution side as to twist the matter to their advantage as a result of which parrot like statement thus comes from the mouth of the witnesses cited as eye witnesses relating to the manner of occurrence, which thus would not have been relied upon. In support of his this contention, learned counsel for the appellants has referred to paragraphs 8 and 9 of the evidence of P.W. 1, paragraph 1 of P.W. 2 also paragraph 1 of P.W. 7 with that of the evidence of P.W. 8. The said house of one of the accused Baso Mahto from where the dead body was located was the abandoned house and no person was residing therein and in that background on no account the accused -appellants can be said to be responsible being, in any way, dragging the dead body of Satya Narayan Jha alias Sona Jha to the said house abandoning the same and fleeing away and it also finds support when the Investigating Officer while examining the place of occurrence had not found any dragging mark on the ground leading to the house of accused Baso Mahto from the alleged place of occurrence. As regards 164 Cr. P.C. statement of Jhaksu Mehra and Bachu Mehra so recorded by P.W. 3, Bachu Mehra got tendered in course of trial. Statement of Jhaksu Mehra (P.W. 8) under section 164 of the Code is recorded on 3.10.77, the date of occurrence being 23.8.77 and in his cross -examination at paragraph 4, in course of trial, Jhaksu Mehra, figuring as P.W. 8, is very specific in stating that prior to his giving statement under section 164 of the Code, he had not revealed anything about the occurrence to any one. That being the position, it is pointed out that the evidence of P.W. 8 on no account can be said to be reliable. With regard to P.W. 11 Bachoo Mehra whose 164 Cr. P.C. statement was also recorded on the same day, that can also not be said to be trustworthy becaue of the reasons best known to the prosecution, he being tendered when brought forward as a prosecution witness. In all fairness it is pointed out on behalf of the accused - appellants that Satya Narayan Jha alias Sona Jha was done to death and his dead body was so located in the house of Baso Mahto is not disputed but the point that as far as these accused - appellants are concerned, they were not the perpetrator rather it was because of the deceased having some illicit connection with the wife of the Paddu Mahto of the same village, being agitated that villagers brutally assaulted him as a result of which he died and in the abandoned house of Baso Mahto his dead body was also thrown by some other person. As claimed that the investigation of this case so done was tainted and perfunctory and that original information so coming was so suppresed which could have been the basis for the acquittal of the accused - appellants, learned counsel for the appellants claimed herself fortified by referring two of the reported cases and they are A.I.R. 1981 S.C. 1230 (Sevy Devi and anr. vs. State of Tamil Nadu) with that of A.I.R. 1976 S.C. 2032 (Bahal Singh vs. State of Haryana). It is, in this background, pointed out that if the witnesses are partisan eye witnesses and there is suppression of the original information so received relating to the occurrence, in such circumstance it would be dangerous as to hold the accused persons guilty of committing the offence and the learned court below has thus erred in relying upon the evidence of such partisan witnesses and not even digging into the fact with regard to the suppression of first hand information so received relating to a cognizable offence. It is also submitted that the statement of the material prosecution witnesses were not so recorded under section 161 of the Code by the Investigating Officer at the earliest moment such as P.Ws. 2 and 6, very much available, claiming themselves to be eye witnesses, rather got examined the next day. Such conduct of the Investigating Officer also, in the instant case, has made the prosecution case doubtful and in support of her this contention the learned counsel representing the accused -apellants has banked upon a reported case A.I.R. 1979 S.C. 135 (Ganesh Bhawan Patel and anr. vs. State of Maharashtra). Non -examination of independent witnesses, it is also pointed out, has made the prosecution case doubtful and in support of her this contention learned counsel for the appellants has referred to a reported case A.I.R. 1988 S.C. 1158 (Awadhesh and anr. vs. State of Madhya Pradesh). Lastly by referring to another reported case A.I.R. 1981 S.C. 765 (Shanker Lal Gyarasilal Dixit vs. State of Maharashtra) it is pointed out that since in the instant case no positive motive was attributed against the accused -appellants as to take the law in their hands by committing murder, as alleged, at that moment for which there was no occasion, this also weakens the prosecution case and this part was also not looked into by the learned court below while passing the judgment of conviction and sentence and in this context reference is made to paragraph 33 of the reported case A.I.R. 1981 S.C. 765 (supra). The evidence, it is pointed out, is to be seen in its totality and by not doing so, in the background of the facts and circumstance so discussed, it is thus submitted that it is a fit case in which the accused -appellants rather be acquitted and thus it is lastly prayed that the impugned judgment of conviction and sentence so passed require interference which be set aside and the accused - appellants be rather acquitted.