LUTAN PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) NOTWITHSTANDING good friendship between them, the prosecution alleges that Lutan Paswan being animated with unholy and uncharitable design, in vited Naresh Mahto to his house on a false pretext and with the aid of others executed his killing.

(2.) AT the outset we may refer to some of the salient features of the prosecution case centering round the incident in question. It was at about 10 p.m. in the night of 22nd June, 1984, that Lutan Paswan and Mahavir Paswan allegedly came to the house of Naresh Mahto and having invited him to their house to take Prasad, took him in their company. As Naresh Mahton did not return to his house till late hours in the night, worried family members asked Lutan Paswan the whereabout of Naresh Mahton when he consoled them not to worry, as he had gone to his father -in - law 'shouse where his mother -in -law had been ailing, and was likely to return to his house within 2 -3 days. The prosecution also alleges that even when Naresh Mahton was not available in his house, Lutan Paswan was visiting his house and was making available milk and mustard oil to his wife, who had delivered a child 2 -3 days proceeding the incident. Just on the following day, Godo, brother of Naresh Mahto, was sent to the house of father -in -law of Naresh Mahto, to ascertain bona fide of the answer responded by Lutan Paswan, who, on his return, informed that Naresh Mahto had not visited house of his father -in -law. It was after about two days, when people came to know about a dead body lying in river Kewta Kuriya Dhar which was even(sic)ally identified to be that of Naresh Mahto. (sic)dead body was found packed in a (sic)nny bag which was quite decomposed (sic)d mutilated, and eyes and tongue of the (sic)ceased had protruded. However, dead (sic)dy could be identified by family members only with the aid of wearing apparel of the deceased. As for motive, the prosecution alleges that as cattle of the Appellants and others had grazed the crops of lafesh Mahto, he had reprimanded them, (sic)suant to which they had threatened (sic)esh Mahto to kill him and with these (sic)ccsations, prosecution was launched on (sic)hest of father of the deceased, following (sic)ich investigation commenced. The In(sic)tigating Officer entrusted with the oner (sic) task of investigation, visited place of (sic)ccurrence, took dead body of Naresh (sic)ahto in custody, which was packed in a (sic)nny bag with marks of strangulation in (sic) neck, recorded statement of witnesses, (sic)pared inquest report, got held autopsy (sic)r the dead body of the deceased and (sic) conclusion of investigation, laid charge (sic) eat before the Court, and eventually trial (sic)mmenced against as many as seven (sic)aons including the Appellants. The State (sic)mined altogether 14 witnesses includ -(sic) family members of the deceased, those (sic) had shown familiarity with the incident (sic)uestion, the Police Officer and also the actor who held autopsy over the dead body of the deceased,

(3.) TWO sets of evidences were sought to be led at trial by the State, as while some witnesses were examined to establish that Lutan Paswan and Mahabir Paswan took Naresh Mahton in their company on the fateful night on false pretext of taking Prasad in their house, pursuant to which, he was not found alive, the other set of evidence was led at trial to establish recovery of dead body of Naresh Mahto from the gunny bag floating in the river. Some witnesses were also examined to suggest animosity which developed between the parties preceding the incident and since evidence of these witnesses have been fairly spelt out in the judgment of the Court below, we wish to refer to them with some brevity for appreciation of the contentions raised at Bar on behalf of the Appellants. Firstly, we wish to examine evidence that were led at trial about first part of the prosecution version, and those examined by the State on this score, happened to be Dhiraj Mahto (P.W. 6), Boudhu Mahto (P.W. 9), Doman Mahto (P.W. 11), and Yogendra Singh (P.W. 13). Reiterating his early version, which he rendered before the Police to set the ball in motion, Dhiraj Mahto (P.W. 6) would make similar narration at trial too about Lutan Paswan and Mahabir Paswan having taken Naresh Mahto in their company in the night, on pretext of taking Prasad in their house, pursuant to which, Naresh Mahto was not found alive, and when inquiries were made from Lutan Paswan by Dhiraj Mahto about Naresh Mahto, who had not returned to his house till late hours of night, he had been allegedly making evasive reply about whereabout of Naresh Mahto, as witness stated that on information rendered by Lutan Paswan, when Godo was sent to the house of father -in -law of Naresh Mahto, he was not found there. It was after about two days, that the dead body of Naresh Mahto was found packed in the gunny bag beside river Kewata Kuriya Dhar. Similar narrations were sought to be made by Boudhu Mahto (P.W. 9). This witness too claimed to have visited house of Lutan Paswan to know whereabout of Naresh Mahto who had not returned to his house after he had been to the house of Lutan Mahto to take Prasad in his company. This witness, however, did not claim his examination by the Police during investigation and that apart, if narration given by Dhiraj Mahto (P.W. 6) was to be given any credence, and also those recitals made in his fardbeyan, they do not suggest P.W. 9 ever visiting house of Lutan Paswan, fol -lowing day, for making inquiry about Naresh Mahto. Doman Mahto (P.W. 11) too seeks to make similar narration at trial about Lutan Paswan and Mahabir Paswan having taken the deceased to their house on pretext of taking Prasad in their house. But if this witness is to be considered credible, he would make exclusion of none else but Dhiraj Mahto at the house, when Lutan Paswan and Mahabir Paswan visited house of Naresh Mahto to take him in their company to take Prasad in their house, as the witness was emphatic in his assertion that at that time, Dhiraj Mahto was in his cattle shed and he was the only male member in the house. Attention of this witness drawn by defence and evidence of Investigating Officer would not, however, fail to suggest that no such parallel statement, about Appellants taking deceased to their house was made before Police during investigation which is an important omission and serious infirmity in his evidence but trial Judge lightly condoned them on analogy that witness has failed to recapitulate events, though which were of vital significance, out of confusion