STATE Vs. HARI NARAYAN MAHTO

JUDGEMENT

(1.) The two appeals before us and the Death Reference arise out of a common judgment and order of the 2nd Addl. Sessions Judge, Nalanda dated 11th August, 1998 in Sessions Trial No. 507 of 1996/33 of 1997, 12 persons were variously charged of offences under Sections 302, 302/34, IPC and Section 27 of the Arms Act. The trial Court recorded a finding that the prosecution had failed to prove its case against 8 of the accused persons who were put up for trial, and consequently recorded an order of acquittal in their favour. It however found that the prosecution had established its case beyond reasonable doubt against the remaining four accused who are the appellants in the two appeals before us. Appellants Hari Sarain Mahto, Deoki Mahto and Lakhan Mahto, appellants in Criminal Appeal No. 392 of 1998, have been found guilty of the offence under Section 302, IPC and all of them have been sentenced to death. Appellant Subodh Kumar, the sole appellant in Criminal Appeal No. 420 of 1998, has been found guilty of the offence under Sections 302/34, IPC and sentenced to rigorous imprisonment for life. Though found guilty of the offence under Section 27 of the Arms Act, the trial Court did not pass any separate sentence on that count. The trial court has made a reference to this Court being Death Reference No. 9 of 1998 for confirmation of the death sentence passed against the appellants in Criminal Appeal No. 392 of 1998.

(2.) The prosecution case is that a dastardly crime was committed in village Bishunpur lying within the jurisdiction of Chandi police station 4 k.m. away on the night intervening the 10th and 11th November, 1995 at about 1 a.m. It is alleged that the appellants as well as other accused, since acquitted, entered the house of the informant P.W. 5 Shankar and shot dead his mother Bedamia Devi, his son Jitendra Kumar and his niece Gayatri Kumari. The informant Shankar, P.W. 5 had hid himself on the Machan in the same room in which his mother and son were sleeping, and therefore escaped the wrath of the appellants. The Investigating Officer, P.W. 7 on coming to know about the occurrence at about 3 a.m. came to the place of occurrence and reached the house of Shankar at about 4.15 a.m. He recorded the fardbeyan of Shankar (Ext-1) at 4.30 a.m., and thereafter took up investigation of the case. A formal first information report was drawn up at the police station at 9 a.m. on the same day.

(3.) In his fardbeyan, the informant, P.W. 5 stated that he was sleeping in his house along with his mother, son and niece. His son Jitendra Kumar, (deceased) and mother Bedamia Devi, (deceased) were sleeping on the same cot in the room while his niece Gayatri Kumari, (deceased) was sleeping on another cot. The informant was also sleeping in the same room. At about 1 'O' Clock in the night he woke up and came outside to urinate. He saw that about 15-16 persons armed with weapons were coming towards his house. He immediately rushed inside his Court yard and he could make out from the conversation of those persons in the lane that they were searching for him.Apprehending danger, he went inside the room and hid himself on the Machan inside the room where a heap of husk was kept. He saw that all those persons entered his Court yard and started searching for him. His mother told them that he (the informant) was not at home. The four appellants herein were carrying rifles in their hands. Appellant Hari Narain Prasad ordered his companions to eliminate the entire family even if the informant was not available. Saying so, he shot at his niece Gayatri Kumari causing injuries to her. Appellant Lakhan Mahto fired at his son Jitendra, who was aged about 12 years, and Deoki Mahto shot at his mother. The remaining persons who were also armed with rifles and guns started firing indiscriminately as a result of which two kids tied in the house, were also injured. Thereafter, appellant Hari Narain Prasad said that the job was done and they should go. Thereafter they all went towards the village.After coming down from Machan, the informant found his mother and son dead. He found that his niece Gayatri had suffered fire arm injuries on her neck. On hearing the report of gun shot and his cries, his neighbours Ram Nandan Ram (not examined) and Satya Narain Yadav, P.W. 3, reached there immediately. At that time, his niece Gayatri was speaking, though she was injured, and saying that appellant Hari Narain Prasad had shot her. The informant claimed to have identified all the accused persons since she had seen them in the light of lantern. Thereafter Ram Bhajan, P.W. 4, Sadhu P.W. 2., Balram Gope P.W. 1 and other villagers also came to his house and those persons had also seen the accused persons returning home in moon light. The villagers took away Gayatri Kumari to Chandi hospital for treatment.It was stated by the informant that in the last assembly election they had cast their votes against the wishes of the accused persons on account of which they had set fire to the house of the poor people and had also committed assault, in respect of which cases were registered at the police station and they were still pending. He was the informant in one of those cases.