NATHUNI MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN the intervening nights of 18/19th October, 1988 while family members were fast asleep, miscreants having gained their access in inner apartment of house of Banti Lal Prasad, P.W. 7, assaulted house inmates, coerced family members, scuffled with some of the house inmates, removed house belongings which include cash, ornaments and wearing apparels, television set, golden ring etc. and decamped with the booty, and while retreating also resorted to firing. The dacoity was committed also in adjacent house of Ram Deyal Mahto. Shortly on tip off, the police visited house of Banti Lal Prasad, recorded his fardbeyan, seized some wooden substance, noticed marks of violence at the place of occurrence, recorded statement of witnesses, and on conclusion of investigation laid chargesheet before the court. In the eventual trial, that followed, the State examined nine witnesses who were house inmates of both houses, where dacoities were committed at that night, and were witnesses to the seizure of incriminating objects from the place of occurrence. Three witnesses were also examined as court witnesses who simply brought on the record some documents about electric connection in the house of Banti Lal Prasad.

(2.) THE defence of the appellants before the court below and this court had been that of innocence and they ascribed their false implication due to criminal cases instituted by Nathuni Mahto against Banti Lal Prasad and one Uma Shankar, cousin brother of Nathuni Mahto. The defence too examined two witnesses ostensibly to counter accusations attributed to the appellants and to bring some documents on the record suggesting institutions of police cases. Other defence witness was put in the witness box only to counter assertion made by Banti Lal Prasad and other witnesses, about identification of appellants in the electric light. The trial court, however, on consideration of probative value of testimony of witnesses, while negativing plea of innocence of the appellants recorded finding of guilt under Section 395 of the Indian Penal Code sentenced them to suffer rigorous imprisonment for a period of ten years which is under challenge in this appeal.

(3.) THE argument, which with stress was sought to be made on behalf of the appellants was that apart from the fact that assertion made by witnesses about identification of the appellants either in electric light or in the flash of torch light is conspicuously wanting in fardbeyan of Banti Lal Prasad, assertion made by them about identification of the appellants in these sources of light, had been seriously challenged by the defence, there being no such parallel statement made before police about identification of appellants either in the flash of torch light or in the electric light. Contention raised on behalf of the appellants was resisted on behalf of the State stating, inter alia, that since witnesses without margin of error were making emphatic assertion at trial about identification of the appellants, significance of omission of source of light in the earlier version of Banti Lal Prasad or in statement of other witnesses, rendered before the police during investigation has all lost its significance.