CRIMINAL APPEAL No.447 OF 2004
Appeal against the judgment and order dated 02.04.2004 and 6.4.2004
respectively passed by Additional Sessions Judge- III, Khagaria in
Sessions Trial No. 239 of 2000.
1. SANJAY MAHTO,
2. SURENDRA MAHTO @ SULO MAHTO
BOTH ARE SONS OF SHRI VYASH NANDAN MAHTO, RESIDENT
OF VILLAGE - RAHIA, P.S. AND DISTRICT - KHAGARIA.
.......... APPELLANTS.
Versus
THE STATE OF BIHAR .......... RESPONDENT.
With
CR. APP (DB) No.454 OF 2004
RAJIV KUMAR MAHTO, SON OF SRI RAM SHANKAR MAHTO,
RESIDENT OF VILLAGE - BHAGWANCHAK, POLICE STATION -
KHAGARIA, DISTRICT - KHAGARIA. ............ APPELLANT.
Versus
THE STATE OF BIHAR ............ RESPONDENT.
FOR THE APPELLANTS : - SRI ASHOK KUMAR CHOUDHAR-1,
ADVOCATE
FOR THE RESPONDENT : - SRI ASHWINI KUMAR SINHA, APP.
(In both appeals).
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PRESENT
THE HON'BLE JUSTICE SMT. MRIDULA MISHRA
THE HON'BLE SRI JUSTICE DHARNIDHAR JHA
***************
Mridula Mishra & These two appeals arise out of the judgment and
Dharnidhar Jha, JJ.
order of conviction and sentence passed by the learned
Additional Sessions Judge -III, Khagaria in Sessions Case
No. 239 of 2000 on the 2nd of April, 2004 and 6th of April,
2004 respectively in which appellants Sanjay Mahto and
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Rajiv Kumar Mahto were found guilty for offences under
Sections 376 & 302 of the Penal Code and each of them was
directed to suffer Rigorous Imprisonment for Life and also
to pay a fine of Rs.5,000/- each for each of the offences. The
third Appellant Surendra Mahto @ Sulo Mahto was found
guilty for committing offences under Sections 376/34 &
302/34 of the Penal Code and sentences were passed in the
same terms as were passed against the two appellants Sanjay
Mahto and Rajiv Kumar Mahto. The appellants challenge
the order of conviction and sentence passed against them.
2. The deceased, Juli Kumari, went out of her house
for attending to the call of nature at about 7.00 a.m. on
24.3.1999. When she did not come back till 9.00 a.m., her
father grew suspect and set out on her search with P.Ws. 1, 2
and 10 and during the course of search, her dead body was
found lying in the maize field of P.W. 8 Krishna Kumar Sah.
It was alleged that appellants Sanjay Mahto and Rajiv
Kumar Mahto, who were respectively aged 18 and 17 years
on that date, were also found present there and seeing the
informant and others, both of them rushed out of the place.
The informant subsequently found that it was bleeding from
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the private parts of his daughter and suspected her to be
raped and killed and attempt was being made by appellants
Sanjay Mahto and Rajiv Kumar Mahto for disposal of the
dead body. With regard to appellant Surendra Mahto @ Sulo
Mahto, it was stated that he requested the informant to forbid
and forget as they would settle the matter sitting together
without going to the police and as such the informant alleged
that appellant Surendra Mahto should also have his hand in
commission of the offence.
3. The fard-beyan of P.W. 3 Bindeshwari Mahto,
the informant of the case, was the basis of drawing up of FIR
and investigation by the police, which ultimately resulted in
submission of the charge sheet.
4. The three appellants pleaded not guilty and after
perusing the evidence of 11 witnesses including Dr. Vimla
Kumari, one of the members of the Board, which held the
post-mortem examination, learned Judge, in spite of
recording a finding that there was not a single witness to the
occurrence and further that there was no circumstantial
evidence of the class, which could unerringly indicate
towards the complicity of the appellants, held that the truth
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was that it was the appellants, who committed the offence.
The above finding recorded by the trial Judge is under
scrutiny in the present appeals.
5. After having been taken through the evidence of
the witnesses, who admittedly have never seen any part of
the occurrence, even that the appellants could be seen near
the deceased or in company of hers, we can safely conclude
that on mere presence of the two appellants, namely, Sanjay
Mahto and Rajiv Kumar Mahto, it cannot be inferred that it
could be their acts that the deceased was raped or killed. The
deceased was indeed subjected to sexual assault and was
strangulated to death also but, in complete lack of the
evidence as regards the commission of offence by any
particular person, we could not simply find ourselves
persuaded to accept the view as was recorded by the learned
trial Judge. The appellants might have been present out of
curiosity by seeing a dead body and that could never give
rise to an inference that it were they, who had committed the
offence. Besides the complicity of Surendra Mahto on the
very face of the statements contained in the FIR could never
be accepted, inasmuch as the said appellant was simply
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attempting reconciliation with the informant so that the
matter was never reported to the police or was taken to the
court. It is concluded that it was the request by the appellant
to the informant and that appears not making out an evidence
of the class or degree which may lead to his conviction.
6. After having gone through the evidence of the
witnesses, we find that the order of conviction and the
sentences passed against the appellants cannot be sustained
in the eyes of law.
6. In the result, both the appeals are allowed and the
appellants in the two appeals are hereby acquitted.
Appellants Sanjay Mahto and Surendra Mahto @ Sulo
Mahto are in custody. Both of them shall be released
forthwith, if not wanted in any other case. Appellant Rajiv
Kumar Mahto is on bail. He shall stand discharged from the
liability of his bail bond.
(Mridula Mishra, J.)
(Dharnidhar Jha, J.)
Patna High Court,
Dated 27th July, 2010,
N.A.F.R./DKS