SUDHIR MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) SUDHIR Mahto, appellant in Cr. Appeal No. 367 of 2000 and Mithilesh Mahto and Bhola Mahto, appellants in Cr. Appeal No. 465 of 2000 are before this court against the common judgment and order, dated July 31, 2000 passed by the 2nd Addl. Sessions Judge, Barh in Sessions Trial No. 1089 of 1998. The three appellants were found, by the trial court, guilty of committing gang -rape and then killing the victim, a nine year child by strangulation. They were given two life terms for the two offences which were directed to run concurrently.

(2.) ACCORDING to the prosecution case, on 6.2.1998 at about 11 in the morning the victim Punam Kumari had gone from her house to the fields at Kanhaipur Tal (at a distance of 1 1/2 KMs from the house) for planting onion seedlings over a piece of land cultivated by her father on Patta. At about 3 in the afternoon her mother Manti Devi (PW2) went to the field with her meal and some more seedlings. There she did not find her daughter Punam Kumari though her chappal, shawl and Thali were lying around. When she was unable to find her she came back to the village and went to her husband at his barber's shop. She reported to him that their daughter was missing and her shawl, chappal etc. were lying in the field. Then the victim's father Kaushal Thakur (PW 4) and a number of villagers went out in search of the girl. Near the field from where the girl was missing the search party met a co -villager who was dumb. By the witnesses examined in the case, he is described as the son of Soren Mahto or simply as Gunga (the dumb). He was cutting grass there. Unable to speak, he tried to communicate with them by making signs. As we shall see later, some members of the search party interpreted him to say that he had seen three persons fleeing in the direction of west or north -west; some other members of the search party interpreted the signs made by him to mean that he had seen three persons taking away the child towards west or north -west. According to the victim's father, PW 4 he had shown three fingers and made the gesture indicating that there were three persons (fleeing away or carrying away the victim girl). He further deposed in court, and he had said it earlier in his fard -e -bayan too that the search party also came across Sheo Narain Mistri (PW 7) who advised them to look for the girl in the rye field. (Sheo Narain Mistri who was examined as PW 7 though turned hostile and denied having made any such statement before the search party or the police). Finally the dead body of the child was found in the field of Ram Swaroop in which rye was planted. There were signs of bleeding from her nose and private parts and her neck appeared to be twisted. It seemed that she was raped by 2 -3 persons and was then killed by strangulating her neck. Her body was brought to the village and was kept in front of the house of Ram Pd. Mahto where the police came and took the statement of her father Kaushal Thakur at 11.45 p.m. on the same day. In his statement, that was recorded as fard -e -bayan (Ext. 3) the victim's father plainly said that he had not seen anyone committing the offence. He further said that close to the place of occurrence there was the boring of Janardan Mahto of Kanhaipur where people stayed all the time, implying that anyone coming to Janardan Mahto's boring might have witnessed the occurrence and might make a statement in that connection. On the basis of the fard -e -bayan a formal F.I.R. (Ext. 4) was drawn up on 7.2.1998 at 3.30 a.m. giving rise to Mokameh P.S. Case No. 21 of 1998.

(3.) ON the day following the occurrence one Surendra Thakur (PW 1) appears to have made a statement before the I.O., saying that on 6.2.1998 at about 2 he had gone to watch his field. There he had the urge for defecating. After relieving himself in the fields, he went to the boring of Ambika Pandit for washing his hand. There he saw the three appellants. Bhola Mahto (appellant no. 2 in Cr. Appeal No. 465 of 2000) and Sudhir Mahto (the appellant in Cr. Appeal No. 367 of 2000) were washing their genitals and Mithilesh Mahto (appellant no. 1 in Cr. Appeal No. 465 of 2000) was washing his lungi which had blood stains on it.