JAGDEO DAHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The gravamen of charges, while against appellant Babue Lal Daha had been about executing killing of Ramdeo Mahto, against rest appellants, the accusations were about sharing common intention, in furtherance of which Ramdeo Mahto was killed by Babue Lal Daha. At the outset we may briefly refer to the main features of the prosecution case against the appellants centering round the incident in question. The accusations appearing in the fardbeyan of Duniya Lal Mahto (PW 9), brother of the deceased, were that at about 7.00 p.m. on 11th June, 1986 while he along with his brother Ramdeo Mahto was coming to the shop of Ram Bilas Seth to purchase clothes, he noticed appellants coming towards their side, having fire arms, and shortly thereafter Babue Lal Daha fired a shot which hit back of his brother who instantaneously dropped dead. It was alleged that though the assailant and his associates were given a good chase, they managed to take their heels. After criminal law was set in motion by brother of the deceased, as usual, investigation commenced, in course of which, the police officer entrusted with the task of carrying on investigation, visited place of occurrence, recorded statement of witnesses, seized offending articles from the piace of occurrence and laid chargesheet before the court on receipt of post-mortem report, having concluded investigation. In the eventual trial that commenced, State examined altogether nine witnesses and those examined by the State includes brother of the deceased, the doctor who held autopsy over the dead body of Ramdeo Mahto, the Investigating Officer, formal witnesses who brought some documents on the record and also those who were either tendered by the State or who turned volte face to the prosecution.

(2.) The defence of the appellants was their false implication due to animosity with the family of the deceased and other defence of the appellants was that though the deceased, who bore criminal antecedent was killed somewhere by some unknown persons, the members of the family of the deceased having seized opportunity, falsely roped them in the instant case. The trial Court, however, having considered the evidences of the prosecution witnesses, the defence witnesses, and also two witnesses examined as court witnesses, finding the defence of the appellants fallacious, convicted appellant Babue Lal Daha under Section 302 of the Indian Penal Code and also Section 27 of the Arms Act for which he was sentenced to suffer rigorous imprisonment for life for the first count and a term of seven years rigorous imprisonment, for the second count. The rest appellants suffered conviction under Section 302/34 of the Indian Penal Code and also 27 of the Arms Act and they too were sentenced for same terms of imprisonment on both counts with a direction that all the sentences shall run concurrently.

(3.) Before appreciating contentions raised at bar on behalf of the appellants, we wish to analyse merit of the prosecution witnesses and also those examined on behalf of the appellants. Yugeshwar Rout, PW 3, was tendered by the State and admittedly there was nothing material in his evidence to merit consideration. Those who were formal in nature and brought some documents on record were Sri Ram Sagar, PW 2, Krishna Mohan Jha, PW 7 and Ram Sagar Singh PW 8. These witnesses are credited to have brought on the record First Information Report, inquest report and also the fardbeyan. Shiveshwar Mahto PW 5 was one of the two witnesses who claimed to be ocular to the incident narrating inter alia at trial that at about 7.30/8.00 p.m. on the day of incident while he was going to other shop after purchasing clothes from a shop in Sindhiya Market, noticed appellants coming from south of the shop, holding country made pistols. He stated to have noticed Ramdeo Mahto (deceased) and also Duniya Lal Mahto PW 9 proceeding towards the shop of Ram Bilas Seth and shortly thereafter, appellant Babue Lal Daha fired a shot causing fire arm injury on the back of Ramdeo Mahto who dropped dead. The alarms were raised by Duniya Lal Mahto for apprehension of the appellants who managed good their escape. Attention of this witness had been drawn by the defence ostensibly to impeach his credibility towards the early version which he allegedly rendered before the police, where he did not make parallel statement claiming to be ocular witness of the incident. The Police Officer who recorded his statement, however, negates his assertion made before the trial Court claiming himself to be ocular witness of the incident. The other witness who claimed to be the ocular was Duniya Lal Mahto, PW 9 who happened to be the brother of the deceased and this witness had made all endeavours to make narrations which are parallel to the fardbeyan which he rendered before the police about appellants approaching towards Ramdeo Mahto while he was coming to purchase clothes in the shop of Ram Bilas Seth, pursuant to which appellant Babue Lal Daha fired a shot causing injury on the back of the deceased who dropped dead. The accusation against other appellants as transpiring in the testimony of this witness was about they too having accompanied the main assailant. The witness would state that after Ramdeo Mahto dropped dead, it was Babue Lal Daha who asked his associates to retire from the place of occurrence, as work had been accomplished. Though alarms were raised by the informant to catch the miscreants, they were beyond their reach and on his alarms, those who happened to collect at the place of occurrence, among others, were Sone Lal Mahto. Jugeshwar Garari, Ram Udgar Mahto, Bilat Mahto and Shiveshwar Mahto.