Allowed

Baleshwar Mahto v. The State Of Bihar

Patna HC16 Sept 2014CR. APP (DB)/328/1991

Case brief

AI extract

What is this about?

The Patna High Court allowed three criminal appeals challenging convictions for murder and other offences. The court set aside the impugned judgment and sentence, finding that the prosecution failed to substantiate charges beyond reasonable doubts due to the non-examination of the informant, lack of injury report, and unreliable evidence of chance witnesses.

What did the court decide?

The judgment of conviction and order of sentence were set aside; appellants were set at liberty and discharged from bail liabilities.

Baleshwar Mahto Vs The State Of Bihar — Cheque Dishonour | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.310 of 1991

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========================================= 1. Ram Pati Mahto son of Chhedi Mahto

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Surendra Mahto son of Kishun Mahto

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Suresh Mahto son of Jangi Mahto

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Garbhu Mahto sonof Nanhaku Mahto

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Basudeo Mahto son of Ganga Bishun Mahto

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Parmanand Mahto @ Parma Mahto son of Raghubar Mahto 7. Lakhan Mahto son of Nanhaku Mahto

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Kishun mahato son of Chhedi Mahto

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Bishundeo Mahto son of Ragho Mahto

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Kapil Mahto son of Bodhan Mahto

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Arjun Mahto son of Banwari Mahto

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Rohan Mahto son of Nanhaku Mahto

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All Resident of village- Mauza Danianwan, P.S.- Ekangarsarai, District- Nalanda………………………………………........... .... Appellants

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Versus

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The State of Bihar……………………………………………………….. Respondent

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with

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Criminal Appeal (DB) No. 316 of 1991

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========================================= Ram Bhajan Mahto son of Chchedi Mahto, R/o village- Danianwan, P.S.- Ekangarsarai, District- Nalanda…………………... .... Appellant Versus

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The State Of Bihar…….…………………………………….... .... Respondent

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with

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Criminal Appeal (DB) No. 328 of 1991

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========================================= Baleshwar Mahto son of RamKishun Mahto, R/o villageDanianwan, P.S.- Ekangarsarai, District- Nalanda………..…Appellant Versus

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The State Of Bihar ………………………………………….... .... Respondent

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========================================= Against the judgment of conviction and order of sentence dated 7^th and 8^th August, 1991 passed by Shri Surendra Kumar Sinha, 2^nd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 164 of 1981. ========================================= Appearance :

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For the Appellant/s : Mr. Sanjay Kumar, Advocate

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Mr. Sudhir Kr. Upadhyay, Advocate For the Respondent/s : Mr. Ajay Mishra, APP

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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=========================================

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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA C.A.V. JUDGMENT

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(Per: HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA) Date: 16-09-2014

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Above noted three appeals have been preferred by all the appellants named above against the judgment of conviction and order of sentence dated 7.8.1991 and 8.8.1991 respectively passed by the learned 2^nd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 164 of 1981 whereby and whereunder appellant Baleshwar Mahto has been found guilty for the offence punishable under Section 302 of the Indian Penal Code and 27 of the Arms Act. Appellant Baleshwar Mahto, Ram Bhajan Mahto, Kapil Mahto, Arjun Mahto, Ram Pati Mahto, Surendra Mahto, Suresh Mahto, Garbhu Mahto, Brahmdev Mahto, Parma Mahto, Lakhan Mahto, Bishundeo Mahto (since deceased) and Rohan Mahto were further found guilty for committing the offence punishable under Sections 148 and 435 of the Indian Penal Code, appellant Kishun Mahto, Ram Bhajan Mahto, Kapil Mahto, Arjun Mahto, Ram Pati Mahto, Surendra Mahto, Suresh Mahto, Garbhu Mahto, Brahmdev Mahto, Parma Mahto, Lakhan Mahto and Bishundeo Mahto (since deceased) were further found guilty for the offence punishable under Sections 307 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life. No separate sentence has been passed against them.

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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2. In Cr. Appeal No. 310 of 1991 (DB) there were 12 appellants and due to death of appellant No. 9 Bishundeo Mahto, his appeal stands abated vide order dated 27.2.2003. In Cr. Appeal No. 316 of 1991 the sole appellant is Rambhajan Mahto whereas in Cr. Appeal No. 328 of 1991 the sole appellant is Baleshwar Mahto. As these three appeals have arisen out of one judgment of conviction and order of sentence and as such, they have been heard together and are being disposed of by this common judgment.

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3. The prosecution case was initiated on the basis of fard-beyan of one Bhola Singh (not examined) whose fard-beyan was recorded by S.I. Anirudh Prasad (PW 2) of Ekangarsarai Police Station on 6.7.1979 at 6.00 PM at Ekangarsarai Hospital. Briefly stated, the prosecution case is that the informant was getting the field ploughed by a tractor at about 10.00 AM in Ahra Khanda, where his Brahil Rajdeo Singh was also present. In the mean time Kishun Mahto, Ram Bhajan Mahto, Baleshwar Mahto, Kapil Mahto, Arjun Mahto being armed with gun and Rohan Mahto armed with Bhala arrived there and Kishun Mahto asked as to why he was getting the field ploughed. The informant replied that he has won the case from the Hon’ble High Court and then Kishun Mahto gave order to kill upon which Baleshwar Mahto fired from country made gun which hit the head of Brahil Rajdeo Singh and he died. Ram Bhajan Mahto also fired which hit left thigh of the informant and he after coming down from the tractor started fleeing away. The other appellants also

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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opened fire. The informant also fell down after traveling some distance, then the villagers Man Lagan Singh (PW 4), Ganga Singh (PW 3) brought the informant to his door from where he was brought to Islampur on Bullock Cart and from there to Ekangarsarai Hospital on bus. Further allegation is that 15-20 persons armed with Bhala and Farsa were also there and the tractor and the deceased are still in the field. Accordingly, the case was registered. The Police took up the investigation and after completion of investigation, chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions where charges were framed against the appellants to which they pleaded not guilty and claimed to be tried.

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4. During trial the prosecution examined six witnesses who are Ram Swarath Singh (PW 1) an Advocate Clerk who has proved the formal FIR (Ext. 1), Anirudh Prasad Sinha (PW 2) the Police Inspector who has recorded the fard-beyan of the informant. He has prepared requisition for injury report. He has proved the fardbeyan (Ext. 2) and his signature on formal FIR (Ext. 2/1). He examined the informant again, went at the place of occurrence and recorded the statement of PW 4 Man Lagan Singh. Inquest was also prepared. He has proved the inquest report (Ext. 3) which was prepared by the Police Inspector Arbind Kumar Singh. He inspected the place of occurrence in torch light which is situated 400 yards away from the house of the informant having khata no. 85, plot no.

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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He found some portion of the field ploughed and also found burnt tractor there which was seized in presence of witnesses Yogendra Singh and Rameshwar Singh (both not examined). He has given full description of the place of occurrence. He has also seized blood stained soil in presence of Nagendra Singh and Rameshwar Singh (both not examined). He has proved both seizure lists (Ext. 4 and 4/1). He further examined Baleshwar Singh Mukhiya (PW 6) and Munnilal (not examined). He received the post mortem report. He also took the photographs of burnt tractor. He has proved the three photographs (Ext. 5, 5/1 and 5/2). He obtained the injury report. He also examined tractor driver Ramji Pandey (not examined) and after completing investigation submitted chargesheet after showing appellant Baleshwar Mahto absconder. He has been cross-examined wherein, in paragraph 10, he states that he came to know that the disputed plot was used for storing water for irrigation. He further states that from outside the criminals were gathered to take possession of the disputed land. He also admits that Dewnath Singh the father of the informant was a criminal. He further admits that the deceased Rajdeo Singh was Brahil or not it was suspicious. PW 3 is Ganga Singh. He has stated that he was coming from Telhara market and as soon as he reached near Lachhi Bagicha saw tractor being ploughed in the field of Bhola Singh which was being driven by the driver and Bhola Singh was also sitting on the tractor. Deonath Singh and Brahil Rajdeo Singh were also present there. The accused

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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persons were also there. He states that Rohan was having Bhala and rests were having Gun and besides them there were 8 more persons also. He states that on being directed by Bishun Mahto, Baleshwar Mahto fired which hit to the head of Brahil Rajdeo Singh and again Ram Bhajan Mahto fired which hit left thigh of Bhola Singh and then this witness and Man Lagan Singh brought Bhola Singh at his door. Thereafter, he went to his house. He has identified the accused persons in the court and claimed to identify rests also who were represented through Advocate. During cross-examination it has come that several litigations were going on between the parties besides the litigation for the disputed plot. In paragraph 19, this witness is concealing relationship. In paragraph 19 he states that Kishun Mahto was claiming the disputed land. Bhola Singh received injury when he was on tractor, then he came down from the tractor and went towards West and then towards South and fell down. He states that Deonath Singh was also coming behind Bhola Singh. Suggestion has been given to this witness that he is the cousin of the informant and is telling a lie to which he denies.

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5. PW 4 is Man Lagan Singh. He has stated that he was returning from Telhara and when he reached in front of Lachhi Bagicha he saw the field was being ploughed by the tractor and Bhola Singh was sitting on the tractor which was being driven by the driver. There, the accused persons being armed with gun except Rohan Mahto with Bhala came, besides them 8 persons were also

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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there and Kishun Mahto directed Bhola Singh not to plough the land on which he replied that he has won the case from the High Court, then Kishun Mahto ordered and Baleshwar Mahto fired which hit Brahil Rajdeo Singh, thereafter, Ram Bhajan Mahto also fired which hit Bhola Singh. Bhola Singh came down from the tractor and fled away towards south west. Driver also fled away. Thereafter, the tractor was burnt. He brought Bhola Singh with the help of Deonath Singh and Ganga singh to his house and from there he went with Bullock Cart to hospital. He has identified the accused persons in the Court. During cross-examination, it reveals that this witness has admitted regarding previous enmity and he appears to be merely a chance witness. PW 3 at one hand claimed that he and this witness brought Bhola Singh to his house whereas this witness is stating the name of Deonath Singh also. Suggestion has been given to this witness that he is telling lie which he has denied. He cannot say as to whether blood was oozing from the body of Bhola Singh or not. He also states that after dropping Bhola singh to his house, he went away to his own house. It reveals that these two witnesses are not revealing truth and are suppressing the hard facts. Both are chance witnesses and are not reliable.

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6. PW 5 is Dr. Daud Ali who has conducted post mortem examination. He has found one circular wound with inverted margin slightly charred on the centre of the forehead which is the injury of entrance whereas injury no. 2 is the injury of exit. From the

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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evidence of this witness it reveals that the firearm injury was found on the person of Rajdeo Singh. The witnesses are claiming to have fired from 10-15 Bans i.e. more than 100 feet but charring near the wound of entrance makes the oral evidence inconsistent.

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7. PW 6 is Baleshwar Singh Mukhiya. He does not know anything about the occurrence. He has stated that he saw the dead body of Rajdeo Singh. He is the witness of inquest but has not started regarding the manner of occurrence and participation of the accused persons in the crime. We have carefully and cautiously examined the evidence brought on the record. The informant has not been examined due to the reason best known to the prosecution. The driver has also not been examined. No injury report of informant regarding receiving gun shot injury on thigh has been brought on record. Further the evidence of PWs 2, 3 and 4 are not reliable. There are material contradictions in the evidence of those two witnesses (PWs 3 and 4).

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8. Learned counsel for the appellants has submitted that the learned court below on merely fanciful, imagination and conjectural inferences has passed the impugned judgment of conviction which is not sustainable. FIR has been lodged after delay. The occurrence is said to be of 10.00 AM whereas the fard-beyan has been lodged at 6.00 PM without any explanation. PWs 3 and 4 are interested witnesses and merely chance witnesses but in spite of that they have been relied upon. Non-examination of the informant has

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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caused serious prejudice to the appellants. Deonath Singh, the father of the informant, and Dr. lakhan Lal, who examined the informant, have also not been examined. The driver of the tractor who was an eye witness also did not come to support the prosecution story. There are developments and embellishments in the depositions of PWs 3 and 4. The Investigating Officer has been examined prior to PWs 3 and 4 and after examination of PWs 3 and 4, PW 2 ( I.O.) has not been examined due to which also the defence has found no opportunity to confront PW 2 (i.O.) with the depositions made by PWs 3 and 4 which seriously prejudiced the defence. The objective finding of the doctor completely negativates the manner of occurrence as alleged. PW 4, in paragraph 26, of his evidence has stated that the appellant Baleshwar was at a distance of 14-15 Bansh from the deceased and in paragraph 27 he has stated 1 Bansh which is equivalent to 5 ½ hand meaning thereby one Bansh is equivalent to 8 feet, so according to PW 4, the shot was fired from a distance of 112-120 feet but the doctor has found charred injury which is not possible from such a long distance. PW 2, in paragraph 7, has deposed that Baleshwar Mukhiya was in Ekangarsarai Hospital and he remained there from 4.30 PM to 6.00 PM. On the other hand Baleshwar Mukhiya (PW 6) has stated that he was present at Lachhi Bagicha at 5.30 PM at the time of preparation of inquest which throws serious doubt regarding recording of fard-beyan and inquest report. PW 2 has admitted regarding father of informant that he was

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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a veteran criminal and further that the deceased was not the Brahil of the informant and the deceased was brought for taking forcefull possession.

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9. On the other hand learned APP has submitted that it is true that the informant has not been examined and only on the evidence of PWs 3 and 4 the learned trial court has relied upon.

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10. In our considered opinion, non-examination of the informant and not bringing the injury report on record and further non-examination of PW 2 (I.O.) after the examination of prosecution witnesses have caused prejudice to the appellants. Thus, the impugned judgment of conviction and order of sentence are not sustainable and fit to be set aside. We find force in the submission of the learned counsel for the appellants. As has already been discussed above, during scrutiny of the evidence, PW 2 was also of the view that the father of the informant was of criminal nature and further the deceased being the Brahil has also been found suspicious. The villagers have told PW 2 that the deceased was never Brahil of the informant which is evident from the evidence of PW 2 recorded in paragraph 10. The prosecution has not brought the real facts in the court.

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11. Thus, it is manifest that the prosecution has not been able to substantiate the charges, framed against the appellants, and the prosecution has miserably failed in prove the charges beyond the shadow of all reasonable doubts.

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Patna High Court CR. APP (DB) No.310 of 1991 dt.16-09-2014

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12. In the result, the judgment of conviction and order of sentence are set aside and these appeals are allowed. The appellants are set at liberty and they are discharged from the liabilities of their bail bonds.

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(Jitendra Mohan Sharma, J)

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Navaniti Prasad Singh, J:I agree.

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(Navaniti Prasad Singh, J)

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Avin./ NAFR U T

Baleshwar Mahto v. The State Of Bihar

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Baleshwar Mahto v. The State Of Bihar

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