Brijnandan Mahto and Others vs The State of Bihar

Honourable Mr. Justice Amaresh Kumar Lal

Brijnandan Mahto, Indradeo Mahto, Dwarika Mahto, Surendra Mahto, Rameshwar Mahto @ Kameshwar Mahto (deleted since dead), Shyam Mahto, Suresh Mahto and Lakhan Mahto have preferred this appeal against the judgment of conviction and sentence dated 21st April 1989 passed by learned Sessions Judge, Nawadah in Sessions Trial No. 488 of 1984 by which they have been convicted and sentenced to rigorous imprisonment for life u/s 302 read with Section 149 and rigorous imprisonment for three years u/s 307 I.P.C. read with section 149 I.P.C. The appellants Lakhan Mahto, Suresh Mahto, Shyam Mahto and Kameshwar Mahto have further been sentenced to rigorous imprisonment for three years u/s 5 of the Explosive Substance Act. All the sentences have been ordered to run concurrently. The prosecution case, in brief, is that on 28th September 1981 the informant Jitendra Prasad Sharma (P.W. 3) was going to Nawadh Court with his father Ram Lakhan Singh (deceased) and uncle Ambika Singh (deceased) by a Rickshaw Van ( Rickshaw without hood and seat). When they reached near the north side of temple (Shivalay) at about 9 a.m., they were intercepted from both sides of the road by the accused. The appellants Lakhan Mahto, Suresh Mahto, Shyam Mahto and Rameshwar Mahto were armed with bombs, whereas, Surendra Mahto, Dwarika Mahto, Brijnandan Mahto and Indradeo Mahto were armed with country made pistol. The rickshaw puller fled away after leaving the rickshaw. The informant and the occupants of the rickshaw also tried to run away, but in the meantime the appellant Lakhan Mahto threw bomb causing injury to Ambika Singh and Suresh Mahto threw bomb causing injury to Ram Lakhan Singh, father of the informant. After getting injured both of them fell down on the road. The informant started running away from that place but he was also attacked by Shyam Mahto and Rameshwar Mahto by throwing bomb. Surendra Mahto, Dwarika Mahto, Brijnandan Mahto and Indradeo Mahto chased him and shot their firearms but he did not receive any injury. In the meantime, Kapildeo Singh ( P. W. 2) son of Kesho Singh and Kapildeo Singh son of Ramswaroop Singh (P.W. 1) also saw the occurrence. They also raised alarm and the appellants fled away towards the village Nigari. Thereafter, the informant, P. W. 1, P. W. 2 and his uncle Lalo Singh (not examined ) carried both the injured Ambika Singh and Ram Lakhan Singh to Nawadah hospital by rickshaw where the doctor declared them dead. The reason for the occurrence is enmity due to pending litigation.

Fardbeyan of the informant was recorded by S. I. Balmiki Sharma (P. W. 5) at Nawadah hospital on 28.9.1981 at 12 O''clock. On the basis of Fardbeyan Akbarpur P. S. Case No. 121 of 1981 was instituted against the appellants. After investigation charge-sheet was submitted against the appellants and co- accused Dilip Kumar @ Rajnandan Mahto. As the case was triable by the Court of session, the case was committed to the court of session. The charges were framed against all the accused for the offence punishable under Sections 302/149, 307/149 and 148 I.P.C. The appellants Lakhan Mahto, Suresh Mahto, Dilip Kumar @ Raj Nandan Mahto, Shyam Mahto and Rameshwar Mahto have been further charged u/s 3/5 of the Explosive Substance Act which they denied and claimed to be tried. Hence, the trial commenced.

The defence of the accused is total denial of the manner of occurrence as alleged by the prosecution and their false implication due to pending litigation. Accused Dilip Kumar @ Raj Nandan Mahto took specific plea that at the time of occurrence he was languishing in Jamui jail having been convicted under the Railway Act. After conclusion of the trial the accused Dilip Kumar @ Rajnandan Mahto has been acquitted. The rest accused have been convicted and sentenced as aforesaid. Thus, they have filed this criminal appeal.

this Court requires to reappraise the evidence and to see as to whether the prosecution has been able to substantiate its charge beyond all reasonable doubts against the appellants.

The prosecution has examined the following witnesses:- P.W. 1 Kapildeo Singh son of Ramswaroop Singh, P. W. 2 Kapildeo Singh son of Kesho Singh. P. W. 3 Jitendra Prasad Sharma (wrongly written as Jitendra Prasad Singh), P. W. 4 Dr. Ajay Kumar, P. W. 5 Balmiki Sharma, P. W. 6 Ram Briksh Singh and P. W. 7 Ram Sharan Jha.

The defence has not adduced any evidence, however, to appreciate the story of alibi two witnesses Saroj Kumar Sinha and Rambaran Ram have been examined as C. W. 1 and 2 respectively.

P. W. 1 Kapildeo Singh has stated that at about 9 a.m. he was going to Nawadh Kapildeo Singh (P. W. 2) was going ahead. When he reached near village Rajadebar, he saw Lakhan Singh and Ambika Singh lying dead on the road. He did not see the assailants. He has been declared hostile. He has stated that he along with Laloo Singh and Naresh Singh (both not examined) Kapildeo Singh (P.W. 2) and Jitendra Pd. Sharma ( P. W. 3) brought both the dead persons to Nawadh hospital. Jitendra Pd. Sharma gave his statement which was witnessed by him and Kapildeo Singh and he identified his signatures as Ext. 1 and 1/1. The inquest report was also prepared in his presence which was witnessed by him. Kapildeo Singh identified his signature as Ext.1/2 to 1/5. He has also stated that he made statement before the Magistrate and he has identified his signature as Ext. 1/6. In his cross-examination he has stated that he did not see the accused hurling bomb nor found them present on the place of occurrence. He has also stated that he, Kapildeo Singh (P.W. 2), Naresh Singh and Laloo Singh came on the Patna Ranchi road at a time where the dead bodies were lying. No one else was present there. He has further stated that Ambika Singh (deceased) and Sidhi Singh were accused in a rape case.

P. W. 2 has stated that at the time of occurrence he was going to Nawadah from his village along with Kapildeo Singh son of Swaroop Singh (P.W. 1). Lakhan Singh, Ambika Singh and the son of Ram Lakhan Singh were going by a rickshaw. He saw that appellants Suresh Mahto, Lakhan Mahto, Rameshwar Mahto and Shyam Mahto armed with bombs came from western side and Dwarika Mahto, Indradeo Mahto, Brijnandan Mahto and Surendra Mahto armed with pistol came from eastern side. They intercepted the rickshaw. Dilip Mahto (acquitted) armed with bomb also came there. Lakhan Mahto hurled bomb on Ambika and Suresh Mahto hurled bomb on Lakhan. Both of them fell down and died there. Rickshaw puller fled away and the son of Lakhan Singh also fled away. Bombs and pistols were also used against him but he did not receive any injury. He and P. W. 1 hide themselves under a tree. Accused after hurling bomb fled towards east. P. W. 2 and others took the dead body to Nawadah hospital. Jitendra Sharma (P. W. 3) gave his fardbeyan which was witnessed by him. The inquest report was also prepared which was also witnessed by him. In his cross-examination he has stated that Mahavir Dhobi was pulling the rickshaw. The rickshaw puller and Jitendra Sharma did not get any bomb or fire short injury. He saw hurling of two bombs. Two-three bombs were hurled which were not witnessed by him. The occurrence took place for about six minutes. The rickshaw was not damaged in the occurrence. There are houses near the place of occurrence at a distance of 10-20 bamboos. Even after hearing the noise of explosion of bomb no outsider came there. P. W. 1 and he were together and both of them hide themselves under a tree and both of them went to the place of occurrence together. When they reached at the place of occurrence, no one was there. The bomb was thrown at a distance of 2-3 bamboos. The way was not disturbed and the vehicles were moving. In paragraph 9, he has stated that he did not give his statement before the Investigating Officer for two days. Thereafter, his statement was recorded in the chamber by Dy. S. P.. He has denied the suggestion of the defence that he has not made correct statement. Ambika was a man of bad character and was killed by someone else and the accused have been falsely implicated.

P. W. 3 is the informant and the son of deceased Ram Lakhan Singh. He has stated that on the date of occurrence he, his father Ram Lakhan Singh and uncle Ambika Singh (both deceased) were going to Nawada by a rickshaw. When the rickshaw reached at village Rajadebar near Shiv temple, Lakhan Mahto, Suresh Mahto, Shyam Mahto and Rameshwar Mahto armed with bomb and Indradeo Mahto, Surendra Mahto, Brijnandan Mahto and Dwarika Mahto armed with pistol intercepted the rickshaw. The rickshaw puller fled away. He and his father and uncle were also trying to flee away. In the meantime, Lakhan Mahto hurled bomb causing injury in the abdomen of Ambika Singh and Suresh Mahto hurled bomb causing injury to his father. Shyam Mahto, Rameshwar Mahto threw bomb which did not hit him. Surendra Mahto, Indradeo Mahto, Brijnandan Mahto and Dwarika Mahto had shot fire at him which did not hit him and he ran towards south side of his village. At the time of occurrence P. W. 1, P. W. 2 and his uncle Laloo Singh (not examined) came there. His father and uncle died. The witnesses took them to the hospital where the doctor declared them dead. He has stated that due to litigation between the deceased and the accused occurrence has taken place. He identified his signature on the Fard Beyan as Ext. 1/7. In his cross-examination, he has stated that he does not know as to whether a case of rape was lodged against his uncle Ambika Singh. He has also stated that he mentioned the name of Dilip Kumar @ Rajnandan before the police officer. He has stated that it is not a fact that he refused to give further statement to the Investigating Officer. He has further stated that Ambika Singh had Rs. 10,000/- in his pocket which was taken by some one. He has also stated that he has also made this statement before the police officer. In paragraph 20, he has stated that the accused came from eastern and western side. Suresh, Shyam, Rameshwar and Indradeo came from eastern side, whereas, Lakhan, Dwarika Rameshwar and Brijnandan and Shyam came from western side of the place of occurrence. The bombs were thrown and firing was made at him at a distance of 20-25 yards. Rickshaw puller did not get any injury. He ran at a distance of 400 yards in the southern side from the place of occurrence about 20 persons were coming from that side. He identified three out of them who saw the occurrence. He has further submitted that it is not a fact that the Investigating Officer wanted to take his statement and also of the witnesses but they avoided and after insistence their statement were recorded before the Dy. S. P. In paragraph 25, he has stated that at the place of occurrence Investigating Officer, Dafadar Baleshwar, Rickshaw puller Mahabir Dhobi and Jamadar Indradeo Singh were present. In paragraph 30, he has stated that both the injured died on the place of occurrence but the dead body was carried to the hospital for post-mortem, as such he did not go to the police station nor any information was sent to the Akbarpur Police Station. In paragraph 32, he has stated that he does not know as to whether accused Dilip was in Jamui Jail at the time of occurrence or not. He has stated that it is not a fact that he did not see the accused assaulting the deceased and they have been falsely implicated in this case due to enmity.

P. W. 4 Dr. Ajay Kumar has held the post mortem upon the dead body of Ram Lakhan Singh (Hindu Male aged about 55 years) on 28.9.1981 at 3.40 P.M. and found following ante mortem injury on his person:

i) Lacerated wound 2" x 1/4" x inner deep with scorched margin and blackening of the skin around over left side of upper lip.

ii) Upper four teeth of left side from central incisor missing.

iii) Lacerated wound 3 1/2" x 2" x 5 1/2" with scorched margin and blackening of the skin around just below and medial to left eye causing damage to skin, fascia, vessels, nerve, fracture of bone and damage of underline brain matter and meninges.

(iv) Damage of left eye.

(v) Lacerated wound 1" x 1/4" x 1/4" with scorched margin and blackening of skin around below injury no. 3.

(vi) Lacerated wound 4" x 1" x bone deep with scorched margin and blackening of skin around over upper part of occipital region.

(vii) Lacerated wound 3" x 3/4" x 1/2" with scorched margin and blackening of skin around over lower part of occipital region.

All the above injuries were ante mortem in nature and caused by explosive substance, such as bomb. Injuries were sufficient in ordinary course of nature to cause death. Time elapsed since death within 6 to 36 hours. This post mortem report has been marked as Ext. 2.

On the same day he held the post mortem examination on the dead boy of Ambika Singh Hindu male aged about 45 years at 4 P. M. and found following ante mortem injuries:

i) Multiple black spots of different sizes on left arm and axilla.

ii) Lacerated would 16" X 8" x inner deep with scorched margin and blackening of skin around causing damage to skin, Fascia, muscles vessels, nerve, fracture of lower five ribs of left side and damaged to stomach, intestine left kidney, splin and left lung.

iii) Multiple black spots of different sizes, all over abdomen.

iv) Left side of chest cavity was full of blood. Right lung right kidney intact and pale.

All the above injuries were ante mortem in nature and caused by explosive substance, such as bomb. Injuries were sufficient in ordinary course of nature to cause death. Time elapsed since death within 6 to 36 hours. This post mortem report has been marked as Ext. 2/1.

In his cross-examination he has stated that he did not find any foreign material such as glass, iron materials etc. from the injuries. The bomb might be thrown from left side. From the nature of injury it appears that bombs were thrown from very close distance. If any person carries bomb injuries mentioned in the post mortem report can be caused if it suddenly explodes. Blood was not coming out from the wounds.

P. W. 5 Balmiki Sharma has recorded the fard beyan of Jitendra Prasad Sharma (P.W. 3) which has been marked as Ext. 3. He has also made inquest report from the dead body of Ram Lakhan Singh and Ambika Singh which has been marked as Ext. 4 and 4/1. In his cross-examination, he has stated that he does not remember as to how he reached to hospital for taking the statement of the informant.

P. W. 6 Ram Briksh Singh is the Investigating Officer. He has stated that after getting rumour he went to Nawada hospital and received the fard beyan of Jitendra Pd. Sharma recorded by S. I. Balmiki Sharma (P.W. 5). He took over the investigation. He has proved the formal FIR (Ext. 5). He came to the place of occurrence which is one mile south from the village Rajadebar. Place of occurrence is Patna Ranchi National High Way in front of village Rajadebar, one mile south from Nawada town. Culvert was at a distance of about 30 steps. There is also under construction house of Khurshid Mian. There is also Shiv temple. Blood stained soil and particles of bombs were seized and seizure list was prepared which has been marked as Ext. 6 and 6/1. He recorded the fard beyan of Kapildeo Singh son of Ramswarop Singh (P.W. 1) who had supported the prosecution case. He has also stated that both the injured died on the place of occurrence. He has also stated that P. W. 1 has also stated before him that accused Dilip Mahto was also armed with bomb. The accused persons exploded 5-6 bombs and made 4-5 fire shot. There is litigation between both the parties which is pending since long. He has also received postmortem report. In his cross-examination, he has stated that on 28.9.1981 the informant refused to give his restatement. P. W. 1 and P. W. 2 always avoided to give their statement. On 1.10.1981 Dy. S. P. himself recorded the statement of P. W. 1 and P. W. 2 in his chamber. In paragraph 16, he has stated that he recorded the statement of Mahavir Dhobi, rickshaw puller who did not claim to identify any of the assailants even after seeing them. In paragraph 19, he has stated that he recorded the statement of the persons near the place of occurrence, namely, Budhu Pasi, Mauji Prasad Yadav, Alakhdeo Prasad Yadav, Bando Pasi, Payare Rajak and others but they did not support the prosecution case. He has further stated that national highway is very busy. He found no sign of firing. No material was sent for forensic examination. When the place of occurrence was visited, informant (P.W. 3), rickshaw puller Mahabir Dhobi, Dafadar Baleshwar Singh and Jamadar Chandradeo Singh and Chandrabansh Singh were present there.

P. W. 7 is a formal witness who has proved the permission of prosecution (Ext. 7).

C. W. 1 Saroj Kumar Sinha has stated that accused Dilip Mahto in jail custody.

C. W. 2 has stated that he was warden in Jamui Jail. Rajnandan Prasad was lodged in the jail on 29.9.1981 at 9.15 am. Since Dilip Kumar @ Rajnandan Mahto has been acquitted therefore it is not necessary to discuss the statement of C. W. 1 and C. W. 2 which have been examined for the purpose of trial of Dilip Kumar @ Rajnandan Mahto. No evidence has been adduced on behalf of the accused.

It is submitted by the Learned Counselfor the appellants that P. W. 1, Laloo Mahto and rickshaw puller are said to have been seen the occurrence in the Fardbeyan as well as in the evidence of P. W. 3. It appears from the evidence of P. W. 1 that he and P.W. 2 have seen the occurrence. When they reached near the place of occurrence, no one was present except the dead body of the deceased. The informant P. W. 3 has also stated that Laloo Mahto is also his uncle but he has not been examined. Even the rickshaw puller who was pulling the rickshaw on whose rickshaw informant and two deceased were sitting, has not been examined and the prosecution has not explained as to why he has not been examined. P. W. 2 and P. W. 3 have claimed to have seen the occurrence but they have deviated from their earlier version. They avoided to give statement before the Investigating Officer and after persuasion their statement has been recorded after three days of the occurrence. It appears that informant, P.W. 1 and P. W. 2 have not seen the occurrence and the appellants have been falsely implicated in this case due to enmity.

After hearing Learned Counselfor both the parties and on perusal of the record it appears that the contention of Learned Counselfor the appellants is correct. P. W. 1 has also been shown as eye witness in the fardbeyan as well as in the evidence of P. W. 3 Jitendra Pd. Sharma, son of deceased Ram Lakhan Singh. In the fardbeyan he has not named the accused Dilip Kumar @ Rajnandan Mahto whereas in his cross-examination he has stated that he has also made statement before the police officer and P. W. 2 has also stated that Dilip Mahto was armed with bomb. From perusal of the fard beyan as well as the evidence of P. W. 1, P. W. 2 and P. W. 3 it appears that Laloo Singh, Naresh Singh, rickshaw puller Mahavir Dhobi were also present at the place of occurrence but they have not been examined. The prosecution has not given any explanation for their non-examination. P. W. 6 I.O. has stated that the informant as well as the witnesses have refused to give their statement and ultimately their statement was taken after persuasion in the office of Dy. S. P. It is settled principle of law that all the witnesses of the prosecution need not be called but witnesses whose evidence is essential to the unfolding of the narrative must be called. Their absence seriously affects the truth of the prosecution case. A reference in this connection may be made to a decision in the case of State of U.P. and Another Vs. Jaggo alias Jagdish and Others, . Paragraph 15 and 16 of the aforesaid judgment are quoted below:-

Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the "unfolding of the narrative" should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad Vs. The State of Hyderabad, , for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case.

this Court in Habeeb Mohammad Vs. The State of Hyderabad, referred to the observations of Jenkins. C. J. In Ram Ranjan Roy Vs. Emperor, that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eye-witnesses should be before the Court. Lord Roche in AIR 1936 289 (Privy Council) , referred to the observations of Jenkins, C. J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammad Vs. The State of Hyderabad, said that the absence of an eye witness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eye-witness the accused were entitled to test his evidence particularly when Lalu was alleged to be taking with Ramesh at the time of the occurrence.

The prosecution has concealed the fact that both the deceased died on the spot. The prosecution witnesses have stated that both the deceased died there. There is no proper explanation as to why the police was not given proper information and the dead bodies were taken to the hospital. The rickshaw puller and Laloo Mahto (uncle of the informant) have not been examined who were the eye witnesses. The prosecution has not explained as to why they were not examined. Investigating Officer has not found any sign of firing on the place of occurrence. The doctor has also not found any substance of bomb in the injuries caused to the deceased but has opined that the death of the deceased was caused due to explosive substance. It appears that the prosecution has not been able to substantiate its case beyond all reasonable doubts. The accused- appellants deserve to get the benefit of doubt.

Considering the facts and circumstances, the impugned judgment of conviction and sentence is not fit to be sustained. It is set aside. The appellants are acquitted of the charge by giving them the benefit of doubt. They are also discharged from the liabilities of their bail bonds. In the result, this appeal is allowed.

Shyam Kishore Sharma, J.

I agree.