Subodh Mahto and Others vs State of Bihar

M.L. Visa, J.M.

Both these appeals arise out of same judgment and order dated 29.8.1987 passed by 14th Additional Sessions Judge, Munger in Session Trial No. 216 of 1985 and, therefore, they have been heard together and are being disposed of by this common judgment.

All the appellants of both the appeals have been convicted and sentenced to undergo rigorous imprisonment for life u/s 302/34, Indian Penal Code.

The case of prosecution, as stated in the fardbayan (Exhibit 3) of informant Raj Kumar Sao (PW1), in short, is that on 10.1.1985, the informant and his villager Singho Paswan (PW 3) at about 11 a.m. were standing by the side of metalled road of their village. At that time, the deceased Jageshwar Prasad Mehta was coming from Piro market. He had a bag carrying sugar and he requested the informant to carry the bag to his house. Informant took the bag from him and, thereafter, the informant, deceased and Singho Paswan, all proceeded for village Gari Bishanpur where the house of deceased is situate. When they all reached near the upper primary school of the village of deceased, all the appellants stopped the deceased in the way. Appellant Pago Mahto @ Pagal Mahto was carrying a dagger and remaining five appellants were carrying pistols. All the appellants, after abusing the deceased said that they would not spare him and when the deceased inquired what he had done, appellant Subodh Mahto said that deceased would be killed and fired from his pistol on the deceased hitting him on lateral side of his right chest and, thereafter, appellant Shankar Mahto fired hitting on the left side of chest of deceased and appellant Gobardhan Yadav also fired hitting on the left thigh of deceased. The deceased fell down and, thereafter, appellant Subodh Mahto again fired on the back of head of deceased and appellants Naresh Kandu and Garib Yadav also fired on the back of head of deceased and appellant Pago Mahto @ Pagal Mahto assaulted the deceased with dagger. In the meantime, witnesses, namely, Narayan Mahto (PW 4), Chander Mahto (PW 5), Gobardhan Mahto (PW 8) came from the side of village of informant and Rajendra Mandal (PW6), Udit Kumar Mahto (PW 7) and Surajdeo Mahto (not examined) came from the side of village-Kashichak and they also saw the occurrence and running away the appellant. On hulla, other persons also assembled there. According to informent, the occurrence took place at about 11.15 a.m. and the deceased died immediately at he spot.

The fardbayan (Exhibit 3) of informant was recorded by Sub-Inspector Mukuldhari Mahto (PW 10) on the day of occurrence at about 12.00 hours at the place of occurrence. On the basis of fardbayan (Exhibit 3) of informant, formal First Information Report (Exhibit 4) under Sections 302/34, Indian Penal Code and Section 27, Arms Act was drawn against all the six appellants. After investigation, charge-sheet against all the appellants was submitted and appellants were put on trial and charge under Sections 302/34, Indian Penal Code was framed against all of them. After trial, the appellants were held guilty under Sections 302/34, Indian Penal Code and were convicted and sentenced to undergo rigorous imprisonment for life.

The defence of appellants, as it appears from the evidence of a witness examined on their behalf and the trend of cross-examination of prosecution witnesses, is of complete denial of charge and their false implication in this case on account of their enmity with one Hakim Mahto.

Altogether eleven witness, on behalf of prosecution, have been examined in this case. PW 1 Raj Kumar Sao is informant. Dani Mahto (PW2) is a formal witness who has proved the signature (Exhibit 1/1) of Sub Inspector Mukuldhari Mahto (PW 10) on the fardbayan (Exhibit 3) of informant, Singho Paswan (PW 3), Narayan Mahto (PW4), Chander Mahto (PW 5), Gobardhan Mahto (PW8) are eye-witnesses to the occurrence. Rajendra Mandal (PW 6) is said to have reached the place of occurrence after hearing the sound of firing and had seen the appellants running away from the place of occurrence. Udit Kumar Mandal @ Uchit Mahto is a tendered witness. Dr. R.C. Mishra (PW9) is the doctor who held autopsy on the dead-body of deceased. Mukuldhari Mahto (PW 10) is the Investigating Officer of the case and Jai Ram Singh (PW 11) is a formal witness who has proved station diary entry (Exhibit 7) in the pen of Mukuldhari Mahto (PW 10).

Dr. R.C. Mishra (PW 9) has said that on 11.1.1985, he was posted as Civil Assistant Surgeon at Sadar Hospital, Munger and on that day at 10 a.m., he held post-mortem examination on the dead-body of deceased and found the following ante-mortem injuries.

(i) one lacerated wound of entry of 1/4" diameter on the left deltoid muscle of left upper arm with inverted edge and on further tracing the wound, it was found that it entered the left side of chest in uppermost part through the left shoulder joint and on further follow up, the left lung was found lacerated in its upper part and the left thoracic cavity was full of blood and on further follow-up and exploration, it was found that the wound entered the right side of chest cavity and here also the right lung was found lacerated and the whole right thoracie cavity was full of blood and on further dissection and probing the wound, there was a wound of exit with averted margin and which was injure No. (ii) and the size of this injury was of 1" diameter,

(ii) fire arm wound of 1-1/2" diameter on the posterior of head and this wound entered the skull after penetrating and fracturing the skull bone that is the occpital bone and the brain matter was lacerated and smashed. It appeared that the bulled had deflected and came out of the same orifice after striking the front of the skull bone that is frontal bone and the margin of the wound was ragged and everted.

(iv) lacerated wound over the middle of the head 3" � 1/4" � 1/4" over the middle of the head.

(v & vi) two lacerated wounds that is fire arm wounds on the upper part of the left thigh oval in nature, one on the lateral part of the thigh of 1/4" diameter with inverted margins and the wound entered the thigh and lacerated the muscles of the thigh, fractured the fenner bone and there was other wound that was the wound of exit on the other side of thigh of 1/2" diameter with averted margin. He has said that in his opinion, death was due to shock and haemorrhage as a result of fire arm wounds No. (i), (ii), (iii), (v) and (vi) and injury No. (iv) was caused by hard and blunt substance. He has further said that time elapsed since death was about twenty four hours at the time of examination and death has been caused in ordinary course of nature by the above injuries. He has proved carbon copy of the post-mortem examination report which, according to him, was prepared in the same process alongwith original and bears his signature (Exhibit 2). He has further said that injuries No. 1 and (iii) were alone sufficient to cause death in ordinary course of nature. In cross-examination, he has said that injuries might have been caused from a distance of more than twenty yards and not a single bullet or pellet was recovered from the dead-body. His evidence establishes that the death of deceased was homicidal was died of firearm injuries inflicted on him. Now it has to be seen what evidence has been led by the prosecution against the appellants holding them responsible for infliction of the injuries which were found on the dead-body of deceased.

Raj Kumar Sao (PW 1), the informant, has said that on the day of occurrence, he aiongwith Singho Paswan (PW 3) was standing by the side of metalled road of his village when they saw deceased coming from Piro bazarwith a bag containing suggar and deceased requested him to carry the bag upto his house and when he, aiongwith deceased and PW3, proceeded for the house of deceased and reached near a school, all the appellants surrounded them and appellant Pago Mahto @ Pagal Mahto was armed with dagger and remaining appellants were armed with pistols. Thereafter, appellant Subodh Mahto, abusing the deceased and saying that he would not be spared and would be killed, opened fire from his pistol and appellants Shankar Mahto and Gobardhan Mahto also opened fire from their pistols and the deceased, after receiving injuries, fell down and, thereafter, appellants Subodh Mahto, Garib Yadav and Naresh Kandu fired shot on deceased from the backside and appellant Pago Mahto @ Pagal Mahto assaulted the deceased with butt of,dagger from backside. According to him, witnesses, namely, PWs 4, 5 and 8 came from the side of Gari Bishanpur village and PW 6, Surendra Mahto (not examined) and PW 7 came from southern side and, thereafter, the appellants Tied away. He has said that his statement was recorded by police on which he put his signature (Exhibit 1). He identified all the appellants in Court. Singho Paswan (PW 3) has said that on the day of occurrence, he, with informant was standing by the side of road when he saw deceased coming from market side carrying a bag and deceased requested the informant to carry the bag to his house and when he, informant and deceased, proceeded for the house of deceased and reached near a primary school, all the appellants surrounded the deceased and started abusing. Appellant Pago Mahto @ Pagal Mahto was armed with a dagger and other appellants were armed with pistols. Appellant Subodh Mahto, saying that he would not spare the deceased and would kill him, fired shot from his pistol causing injury on the right panjra of deceased and, thereafter, appellant Shankar Mahto fired shot from his pistol on the left side of chest of deceased and appellant Gobardhan Mahto fired shot on the left thigh of deceased. Deceased fell down and, thereafter, appellant Subodh mahto fired shot on the bakside of head of deceased and appellants Naresh Kandu and Garib Yadav also fired from their pistols and appellant Pago Mahto @ Pagal Mahto assaulted the deceased on his head with the butt of dagger, deceased died at the spot. According to him, from the side of village, PWs 4, 5 and 8 and from the southern side, PWs 6, 7 and Surendra Mahto (not examined) came. Narayan Mahto (PW 4) has said that on the day of occurrence at about 11 a.m. he, alongwith PWs 5 and 8, was going to Piro bazar and when they came out from the village, they heard sound of three firings coming from primary school and when they proceeded further and reached near the well of Darbari Mahto, they found that a man was lying and appellant Subodh Mahto, Naresh Kandu and Garib Yadav fired one shot each on him and appellant Pago Mahto @ Pagal Mahto assaulted the injured with dagger and at that time, appellants Shankar Mahto and Gobardhan Yadav were also carrying pistols and after assault, all the appellants fled away and he found that deceased was dead. According to him, informant and PW 3 were also there and PWs 6, 7 and Surendra Mahto (not examined) came from southern side. Chander Mahto (PW 5), supporting the evidence of PW 4, has stated that on the day of occurrence he, alongwith PWs 4 and 8, was going to Piro bazar and he heard sound of three firings coming from primary school and when he and his companions reached near the well of Darbari Mahto, he found a man fallen on the ground and appellants Subodh Mahto, Garib Yadav and Naresh Kandu fired shots from their pistols on him and appellant Pago Mahto @ Pagal Mahto assaulted him with the butt of dagger and appellant Shankar Mahto and Gobardhan Mahto were standing their carrying pistols and after assault, all the appellants fled away. He has said that he saw informant and PW 3 standing there and from southern side, PWs 6 and 7 alongwith Surendra Mahto (not examined) also came there. He has said that there was enmity between deceased and appellants owing to a case. Rajendra Mandal (PW6) has said that on the day of occurrence, he was going from Kashichak to Gari Bishanpur and in the way, he met Surendra Mahto (not examined) and PW 7 and, thereafter, they all proceeded for Gauri Bishanpur and when they reached near a pipal tree, they heard sound of three firings coming from Gari Bishanpur school and then they hurriedly proceeded towards Gari Bishnpur and when they reached panchayat bhavan, they again heard three more sounds of firing and when they proceeded further, they found a man lying near a toddy tree and appellants were running away towards west passing through north and appellant Pago Mahto @ Pagal Mahto was carrying a dagger and remaining appellants were carrying pistols. Gobardhan Mahto (PW 8) has said that on the day of occurrence at about 11 a.m., he alongwith PWs 4 and 8 was going to Piro bazaar for marketing and at the moment, when they came out of the village, he heard sound of three firings coming from upper primary school and they all three hurriedly proceeded further and when they reached near the well of Darbari Mahto, they saw a man lying near the toddy tree and they also saw all the appellants there. Appellant Pago Mahto @ Pagal Mahtovas armed with a dagger arid remaining appellants were armed with pistols. Appellant Subodh Mahto fired a shot from his pistol on the head of the fallen person who was deceased Jageshwar Prasad Mehta and appellants Naresh Kandu and Garib Yadav fired one shot each from their pistols on the backside and appellant Pago Matho @ Pagal Mahto assaulted the deceased on his head with the butt of dagger. Shankar Mahto and Gobardhan Yadav were standing there with pistols and, thereafter, appellants fled away. He has said that deceased was having bad relations with the appellants.

The evidence of aforesaid witnesses, who have stated about the occurrence, is quite consistent and they have been cross-examined at length but nothing has been elicited from them to disbelieve their evidence. The evidence of Mukuldhari Mahto (PW 10). Investigating Officer of this case, simply shows that PWs 5 and 8 had not stated in their earlier statement that deceased was having enmity with the appellants and there was litigation between them. Except this, no contradiction of any type has been pointed out by defence in the earlier statement and in the evidence of witnesses who have said about the occurrence. So, we find that there is no contradiction in the statement and evidence of these witnesses so far the assault by appellants and the manner of assault are concerned. Mukuldhari Mahto (PW 10), the Investigating Officer, has said that on the day of occurrence, he was posted as Officer-in-Charge of Piro bazar Police Station and on that day at about 11.30 a.m., he received information from chaukidar Jagdish Paswan about the firing at Gari Bishanpur and, thereafter, he went to the place of occurrence where he reached at about 12 O''clock in the noon and recorded the fardbayan (Exhibit 3) of informant. He has also proved the formal First Information Report (Exhibit 4) and request report prepared by him (Exhibit 5). He has said that at the place of occurrence, he found two fired cartridges which were seized and he also seized blood-stained soil and prepared seizure list (Exhibits). He has also identified the blood-stained soil (Material Exhibit 1) and fired cartridges (Material Exhibit 2). He has said that at a distance of forty yards from the place of occurrence, there is a pucca well. This statement supports the evidence of those prosecution witnesses who have said that they found the dead-body of deceased near the pucca well of Darbari Mahto.

The case of appellants is that they were having litigstion with one Hakim Mahto and at the instance of Hakim Mahto, they have been falsely implicated in this case. They have examined one witness who is Sahdeo Mahto (DW1) and who has said that on the day of occurrence at about 10 a.m., he was going to his house from his khaliyan and when he reached near a mountain, he saw five to seven persons running away and when he climbed the mountain because that was the way of his house, he met a woman who informed that some Naxalities had killed the deceased and when he reached near the house of one Gahannu Mistri, he found the dead-body of deceased lying on a cot where Ghannu Mistri, Hakim Mahto and one to two persons were present there and chaukidar Jagdish Paswan was also there who told that he was going to police station for lodging information and after half an hour, he came back with police and the Officer-in-Charge dispersed the mob and talked with Hakim Mahto separately. In cross-examination, he has said that he met the lady at the peak of mountain who informed him about the murder of deceased but he does not know her name and that she had not told the name of any appellant. He is not an eye-witness to the occurrence and his evidence has been adduced in this case on behalf of appellants in order to show that they have been implicated at the instance of Hakim Mahto but the appellants have not brought anything on record to show that the prosecution witnesses, who have stated about the occurrence, are in any way related to Hakim Mahto. There is nothing on record to show that eye-witnesses to the occurrence are having any enmity with the appellants. Besides this, the Court below has rightly disbelieved the evidence of DW1 that at about 10 a.m., he received information that deceased had been killed by some Naxalites meaning thereby that the occurrence must have taken place much before 10 a.m., whereas the medical evidence shows time of occurrence within 24 hours from 10 a.m. on 11.1.1985 meaning thereby that the occurrence must have taken place at or after 10 a.m. on the day of occurrence.

the teamed Counsel for the appellants has argued that according to case of prosecution, except appellant Pago Mahto @ Pagal Mahto, all the five appellants fired shots from their pistols on the deceased but the doctor found only three fire arm injuries on the deceased which does not support the case of prosecution. We are unable to accept this argument. It is true that prosecution witnesses have said that except appellant Pago Mahto @ Pagal Mahto, all the five appellants fired shots from their pistols causing injuries to deceased but at the same time, they have said that it took only two to three minutes in the occurrence and in this view of the matter, they could have only seen fifing by appellants and infliction of injuries on deceased without noticing minutely which shot fired by which appellant hit which part of body of deceased. If the appellants were armed with pistols and all opened fire from their pistols on deceased, the question of number of injuries on deceased does not matter. Once the prosecution proves that deceased died of ire arm injuries and it further proves that appellants had fired shots from their fire arms on deceased, nothing further is required because that clearly proves the common intention of appellants for committing the murder of deceased, it has further been argued that in the fardbayan (Exhibit 3) of informant, it is stated that appellant Pago Mahto @ Pagal Mahto assaulted the deceased on his head with dagger but in evidence, prosecution witnesses have introduced a new fact that appellant Pago Mahto @ Pagal Mahto assaulted the deceased on his head with the butt of dagger and this has purposely been introduced in order to match their evidence with the post-mortem examination report which does not disclose any injury by dagger on deceased. It is true that in the fardbayan (Exhibit 3) of informant, it is stated that appellant Pago Mahto @ Pagal Mahto assaulted the deceased on the back of head of deceased with dagger and it is also true that prosecution witnesses have stated that appellant Pago Mahto @ Pagal Mahto assaulted the deceased on the back of head of deceased with the butt of dagger but in our opinion this is not a major contradiction for throwing away the entire case of prosecution. Besides this, the presence of appellant Pago Mahto @ Pagal Mahto alongwith other appellants at the time of occurrence and his being armed with dagger, has been supported by all the prosecution witnesses who have said about the occurrence. In this view of the matter, he cannot escape the liability of sharing common intention with other appellants who were with him and who all were armed with pistols and who opened fire from their pistols on deceased.

Considering the entire evidence on record, we find that prosecution has successfully proved its case against all the appellants and we find nothing in the evidence of prosecution witnesses, who are quite independent witnesses to hold them not trustworthy.

In the result, both the appeals are dismissed. The judgment and order of Court below convicting and sentencing the appellants is hereby confirmed. Since all the appellants are on bail, their bail bonds are cancelled and they are directed to surrender before the Court below to serve out the remaining sentences passed against them.

B.K. Jha, J.

I agree.