DEATH REFERENCE No.5 OF 2004
***
STATE OF BIHAR—————————–APPELLANT
Versus
DHARAMJAY PRASAD————————–RESPONDENT
WITH
CR. APP (DB) No.284 of 2004
DHARAMJAY PRASAD @ DHARAMJAY MAHTO
SON OF LATE BALDEO MAHTO, RESIDENT OF VILLAGE
SARKATTI, P.S. BARH, DISTRICT PATNA——–APPELLANT
Versus
STATE OF BIHAR—————————-RESPONDENT
WITH
CR. APP (DB) No.286 of 2004
KARU MAHTO, SON OF LAKHAN MAHTO, RESIDENT OF VILLAGE
SAIDPUR, P.S. BARH, DISTRICT PATNA———APPELLANT
Versus
STATE OF BIHAR—————————-RESPONDENT
WITH
(CR. APP (DB) No.335 of 2004
BINDA MAHTO, SON OF LATE SATYA DEO @ SAHDEO MAHTO,
RESIDENT OF VILLAGE SARKATTI, P.S. BARH, DISTRICT,
PATNA—– ——————————–APPELLANT
Versus
STATE OF BIHAR—————————-RESPONDENT
***
Reference made by Sri Md. Abdul Baqui, Additional
District & Sessions Judge, IV, Barh (Patna) vide
letter no.100/04 dated 25th day of March, 2004 and
criminal appeals against the judgment dated
22.3.2004 and order dated 24.3.2004 in Sessions
Trial No.686 of 1995.
***
For the Appellants : M/s Abhay Kumar Singh, Parmatma
Singh, Brajesh Kumar & Bharat
Bhushan, Advocates (In Criminal
Appeal No.284/04)
Mr. B.K.Roy, Advocate
(In Criminal Appeal No. 286/04)
M/s Rajendra Narain, Nawal
Kishore Prasad & Satyendra
2
Prasad, Advocates
(In Criminal Appeal No.335/04)
For the State : Mr. Lala Kailash Bihari Prasad,
Additional P.P. (In all
Criminal Appeals)
***
P R E S E N T
THE HON’BLE JUSTICE SMT. MRIDULA MISHRA
THE HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM
***
S.M.M.Alam, J. Death Reference No.5 of 2004 (State of Bihar Versus
Dharamjay Prasad) and three criminal appeals bearing
Criminal Appeal No.284 (D.B.) (Dharamjay Prasad alias
Dharamjay Mahto) as well as Criminal No.286 of 2004(D.B.)
(Karu Mahto Versus The State of Bihar) and Criminal
Appeal No.335 of 2004 (D.B.)(Binda Mahto Versus The State
of Bihar) arise out of one and the same judgment dated 2nd
Day of March, 2004 passed in Sessions Trial No.686 of
1995 by 4th Additional District & Sessions Judge, Barh
whereby and whereunder all the three appellants along
with three other accused, who are absconders, were
convicted for the offence under Section 302/34 of the
Indian Penal Code. Besides that, appellants Karu Mahto
and Binda Mahto were also convicted for the offence under
Section 27 of the Arms Act. For the offence under Section
302/34 of the I.P.C., appellant Dharamjay Prasad Mukhiya
was sentenced to death and ordered to be hanged by neck
till his death. The other two appellants, namely, Karu
Mahto and Binda Mahto, were sentenced to imprisonment for
3
life under Section 302/34 of the Indian Penal Code and
further sentenced for seven years rigorous imprisonment
for the offence under Section 27 of the Arms Act. The
learned Additional Sessions Judge observed with direction
that both the sentences shall run concurrently. For
confirmation of death sentence awarded to appellant
Dharamjay Prasad Mukhiya, the learned Additional Sessions
Judge made reference to this Court whereas three
appellants filed separate three criminal appeals and
thus, the above-mentioned death reference along with
three criminal appeals are before us.
2. The prosecution case, as per Exhibit 5, the
fardbeyan of informant Harif Nonia (P.W.5) son of Keshav
Nonia of village Shaidpur, P.S. Barh, District Patna
recorded by S.I., Pyush Kant of Barh P.S. on 12.7.94 at
22 hours at village Saidpur, in brief, is that on the
same day at about 4 P.M. while he along with his brother
Ram swarath Chauhan, his nephew Pramod Chauhan, Manish
Nonia, his uncle Shiv Balak Chauhan along his father
Keshav Nonia were sitting together at the outer portion
of his house (Dalan), they saw co-villagers Bhonu Mahto
armed with rifle and Karu Mahto armed with pistol; Bablu
Mahto, Binda Mahto of village Sarkatti armed with rifle,
Surjan Mahto, Lalmuni Chauhan alias Chunnu Chauhan of
village Chakjalal, P.S. Bhadaur armed with gun along with
appellant Dharamjay Prasad Mukhiya coming to his Dalan.
As soon as they reached at his Dalan, Dharamjay Prasad
Mukhiya shouted and ordered Ram Swarath and Pramod (both
4
deceased to remain sitting otherwise they would be shot
at. Being afraid, the informant along with Ram Swarath
and Pramod and others tried to flee away whereupon
appellant Dharamjay Prasad Mukhiya gave order to his
associates to shoot both the deceased. On getting order
from the appellant Dharamjay Prasad, all other accused
persons entered into Dalan of the informant and accused
Bablu Mahto opened fire from his rifle upon Pramod which
caused injury on his chest. Thereafter accused Bhonu
Mahto opened fire from his rifle causing injury to Pramod
on his back just above his waist. After that, accused
Surjan Mahto (absconding accused who did not face trial)
opened fire from his gun at Ram Swarath which hit on his
head who fell down and immediately thereafter accused
Lalmuni Chauhan alias Chunnu Chauhan opened fire from his
gun which punctured into the abdomen of Ram Swarath and
appellant Binda Mahto opened fire from his rifle causing
injury to Ram Swarath on his back. On receiving fire-arm
injuries, Pramod Chauhan and Ram Swarath both fell down
and died on the spot. It is further stated that appellant
Karu Mahto also opened fire from his pistol aiming at the
informant but the informant escaped unhurt. It is stated
that after the occurrence all the accused persons raising
slogans ran towards village Sarkatti. The motive behind
the murder was that deceased Ram Swarath and his son
Pramod used to supply labourers to work in the brick-kiln
at Patna and appellant Dharamjay Prasad Mukhiya was
demanding Rs.10/- per labourer as his commission to which
5
deceased Ram Swarath did not agree and due to that, all
the accused persons under the leadership of Dharmajay
Prasad Mukhiya committed murder of Ram Swarath and his
son Pramod Chauhan. After the occurrence the informant
Harif Nonia asked Shiv Balak Nonia (C.W.2) to inform the
local Chawkidar, namely, Baleshwar Paswan (C.W.3) for
giving information of the occurrence to the concerned
Police Station whereupon Chawkidar Baleswhar Paswan went
to Barh Police Station along with the informant and
thereafter Sub-Inspector Pyush Kant (C.W.4) rushed to the
place of occurrence and reached at the place of
occurrence at about 10.00 P.M. on the same day where he
recorded the fardbeyan of informant Harif Nonia (P.W.5).
After recording the fardbeyan he sent the same to Barh
P.S. where on receipt of the same, Inspector of Police
cum-Officer Incharge Bigul Gari registered a case bearing
Barh P.S. Case No.261 dated 13.7.1994 for the offence
under Sections 147, 148, 149, 302 of the India Penal Code
and on that basis, he drew up a formal F.I.R. (Ext.1).
After registering the case at 4.00 P.M., the said Officer
Incharge Bigul Gari (C.W.1) rushed to the place of
occurrence at about 6 P.M. on 13.7.1994 to village
Shaidpur and on reaching at the place of occurrence, he
got the inquest reports prepared vide Exts.3 and 3/1 and
sent the dead bodies of the deceased for post mortem. The
post mortem was conducted by Dr.Nagina Paswan of Sadar
Hospital, Barh as per Exts. 2 and 2/1. During
investigation, C.W.1 Bigul Gari seized the blood stained
6
earth and other materials from the place of occurrence
and prepared seizure list, recorded the statements of the
witnesses, inspected the place of occurrence, obtained
post mortem reports and thereafter submitted separate
charge sheet in all three appeals against the appellants
and others accused persons showing Surjan Mahto as
absconder.
3. On submission of the charge sheet, the learned
Additional Chief Judicial Magistrate, Barh took
cognizance of the offence against accused persons under
Sections 147, 148, 149, 302 and 307 of the Indian Penal
Code and Section 27 of the Arms Act. Thereafter on
13.8.1995 he committed the case to the Court of Session.
Thereafter the appellants along with others were tried
and convicted and sentenced, as stated above. Appellant
Dharamjay Prasad Mukhiya was sentenced to death for the
offence under Section 302/34 of the Indian Penal Code by
the learned Additional Sessions who made reference for
confirmation of death sentence.
4. The specific defence of appellant Dharamjay Mahto
alias Dharamjay Mukhiya is that Ex-Mukhiya Madan Mohan
Singh, who lost election of Mukhiya against him, has
falsely implicated him in this case. His further defence
is that the father of informant, namely, Keshav Chauhan
has illegally encroached Gairmazarua Aam land for which
he had reported the matter to the Senior S.P. and due to
that, the informant after bringing Sub-Inspector, Peyush
Kant in his collusion, falsely implicated him in this
7
case after changing the original F.I.R. His further
defence is that on the alleged date of occurrence he was
attending the meeting of Janata Dal at M.L.A. Club and
was not present on the village. The defence of the other
accused is of false implication.
5. In order to prove the case, the prosecution has
examined seven witnesses in this case, namely, Ram Sagar
Prasad (P.W.1), Nagina Paswan (P.W.2), Chandrika Prasad
(P.W.3), Dulari Devi @ Sundari Devi (P.W.4), Harif Nonia
@ Chauhan (P.W.5), Chhattu Prasad (P.W.6) and Rajendra
Prasad Yadav (P.W.7). Out of the aforesaid witnesses,
P.Ws. 1 and 7 are the formal witnesses. They have proved
the formal F.I.R. and fardbeyan of the informant besides
the entire case diary which are Exts. 1, 5 and 6,
respectively. Out of the remaining witnesses, P.W.2 is
the doctor, who had conducted post mortem examination on
the dead body of both the deceased. P.W.4 Dulari Devi @
Sundari Devi, who is said to be the mother of the
informant and deceased Ram Swarath and grand-mother of
deceased Pramod Chauhan, has been tendered for cross-
examination. P.W.6 Chhattu Prasad is a witness of the
inquest reports which are Exts. 3 and 3/1. P.W.3 is an
independent witness whereas P.W.5 is the informant of
this case.
6. From the record it transpires that four other
witnesses were also examined under the provisions of
Section 311 of the Code of Criminal Procedure. They are
Bigul Gari Inspector of Police-cum-I.O. (C.W.1), Shiv
8
Balak Nonia (C.W.2), Chowkidar Baleshwar Paswan (C.W.3)
and Peyush Kant Inspector of Barh P.S. (C.W.4). It is
stated that this witness had recorded the fardbeyan of
the informant and had prepared inquest reports. The
fardbeyan of the informant is the basis of this case.
7. The defence has also examined ten witnesses in
support of the defence case. They are Lakhan Mahto D.W.1,
Kamlakant Prasad Sharma D.W.2, Arjun Sharma D.W.3,
Ramakant Prasad Singh D.W.4, Bal Govind Prasad Singh
D.W.5, Krishnadeo Prasad Singh D.W.6, Birendra Prasad
Singh D.W.7, Nityanand Singh D.W.8, Umesh Prasad Singh
D.W.9 and Arun Prasad D.W.10. The defence has also
produced some documents which have been marked as
exhibits.
8. Let me see – whether on the basis of the materials
available on record, the prosecution case, as disclosed
in the fardbeyan (Ext.3) of the informant (P.W.5), has
been proved beyond all reasonable doubts or not ?
9. In order to find out – whether on the basis of the
materials available on record it can be held that the
prosecution has been able to substantiate the charges
levelled against the accused persons beyond all
reasonable doubt, I would like to firstly discuss the
evidence of the prosecution witnesses and the evidence of
the court witnesses. As stated above, altogether seven
witnesses have been examined on behalf of the
prosecution. P.W.1 is Ram Sagar Prasad. He is a formal
9
witness. He has proved the formal F.I.R which has been
marked as Ext.1.
10. P.W.2 is Dr. Nagina Prasad, who had conducted post
mortem examination on the dead body of Pramod Chauhan and
Ram Swarath Chauhan on 13.7.94 at 4.45 P.M. and 5.20 P.M.
His evidence is as follows :-
On 13.7.1994 at 4.45 P.M. he had conducted post mortem
examination on the dead body of Pramod Chauhan and found
the following injuries.
The eyes were open. Mouth was closed. Rigor mortis was
present in all four limbs.
(i)Circular shaped lacerated wound
over interior surface of left chest
adjacent to sternum 1" in diameter
margin was inverted. Skin was black
and charred.
In surrounding area there were multiple dots like burns.
Track passes inward. Sternum was fractured. This was
wound of the entry.
(ii) Circular shaped lacerated wound
over the back of abdomen adjacent to
lumber vertebra 1/1" in diameter
margin was inverted.
On dissection skull meninges and brain matters were
intact, lungs were pale, liver was pale, kidneys and
spleen were pale. Heart was ruptured and left side of
diaphragm was also ruptured and directed towards abdomen.
Stomach contained digested food. Small and large
10
intestine was full of gases. Time passed since death
within 6 to 46 hours from the time of examination. Cause
of death was due to shock and haemorrhage caused by fire-
arm injury. He has proved post mortem report which has
marked as Ext.2.
11. P.W.2 has further deposed that on the same day at
5.20 P.M. he held post mortem examination on the dead
body of Ram Swarath Chauhan and found the following
injuries.
Eyes were semi-open; mouth was closed; rigor mortis was
present in all four limbs.
(i) Circular shaped lacerated wound over the
left iliac region with blackened and
charred skin, margin was inverted ¼" in
diameter. This was wound of entry.
(ii) Circular shaped lacerated wound over the
back of abdomen just above the left iliac
next ½” in diameter, margin inverted. This
was wound of exit.
On dissection, skull meninges in brain matters were
intact lung, liver, kidneys, spleen were pale. Heart was
empty, stomach was empty and small intestine was
ruptured. The age of injuries was within 6 to 36 hours.
Cause of death was due to shock and haemorrhage caused by
injuries of fire-arms such as rifles and guns. He has
proved post mortem report of deceased Ram Swarath Chauhan
which has been marked as Ext.2/1. He has also proved two
11
inquest reports of the aforesaid deceased which have been
marked as Exts.3 and 3/1, respectively.
12. The evidence of P.W.2 coupled with post mortem
reports Exts. 2 and 2/1 and the inquest reports Exts. 3
and 3/1 establishes beyond doubt that the death of
deceased Pramod Chauhan and Ram Swarath Chauhan was
homicidal caused by fire-arm injuries.
13. P.W.3 Chandrika Prasad is said to be the eye-witness
of the occurrence. His evidence is that the occurrence
took place more than three years ago at about 4 P.M. in
the evening. At that time, he was going south of the
village and when he reached near the Dalan of Kansi
Zamadar he saw Dharamjay Mukhia coming from south
followed by six persons, namely, Surjan Mahto, Lal Muni
Chauhan alias Chunnu Chauhan, Bablu Mahto, Binda Mahto,
Gonu Mahto and Karu Mahto. They were armed with rifles,
guns and pistols. Pramod, Ram Swarath (both deceased) and
Harif tried to run away from that place whereupon
Dharamjay Mukhiya asked them to sit down but Pramod, Ram
Swarath and Harif ran towards Dalan where Dharamjay
Mukhiya exhorted all other accused persons to open fire
upon which Bablu Mahto fired shot with his rifle which
hit Pramod on his chest, Gonu Mhato fired shot with his
rifle which hit Pramod on his back above the waist.
Surjan Mahto opened fire with his gun which hit Ram
Swarath on his head. Lalmuni Chauhan opened fire with his
gun which hit Ram swarath on his abdomen. Binda Mahto
fire shot with his rifle which hit Ram Swarath on his
12
back. Karu Mahto fired shot with his pistol at Harif but
Harif remained unhurt. Pramod and Ram Swarath died at the
spot. The motive of the occurrence was that Ram Swarath
used to hire labourers to brick-kiln at Patna on contract
basis. Appellant Dharamjay Mukhiya was demanding Rangdari
tax from him but Ram Swarath refused to give Rangdari tax
to him and due to that, this occurrence had taken place.
In cross-examination at paragraph 50 he has stated
Dharamjay Mukhiya had not demanded any extortion money
from deceased Ram Swarath in his presence. He has also
admitted that Dharamjay Mahto is continuing as Mukhiya
for the last 15 years and prior to that, Madan Mohan
Singh was the Mukhiya of village Rahima.
14. P.W.4 Dulari Devi alias Sundari Devi is the mother
of the informant and deceased Ram Swarath and grand-
mother of Pramod Chauhan. She has been tendered for
cross-examination. In cross-examination, no question was
asked from her on the point of occurrence. So, her
evidence is not relevant in this case.
15. P.W.5 Harif Nonia is the informant of this case. His
evidence is that the occurrence took place about three
years and 17-18 days back on a Tuesday at about 4 P.M. At
that time he was at his Dalan. His brother Ram Swarath,
father Kesho Chauhan, uncle Shiv Balak Chauhan, nephews
Pramod Chauhan and Manoj Chauhan were also present there.
He saw appellant Dharamjay Mukhiya along with Bhonu
Mahto, Bablu Mahto, Surjan Mahto, Lalmuni alias Chunnu
Chauhan, Binda Mahto and Karu Mahto coming towards Dalan.
13
Bhonu Mahto, Bablu Mahto and Binda Mhato were armed with
gun whereas Surjan Mahto and Lalmuni were armed with gun
and Karu Mahto was armed with a pistol. They all came in
front of his Dalan. Dharamjay Mukhiya asked Ram Swarath
and Pramod to sit at the same place otherwise he would
shoot them. Out of fear, Ram Swarath and Pramod started
fleeing away towards Dalan and then Dharmajay Mahto
ordered to open fire whereupon Bablu fired shot form his
rifle which hit Pramod on his chest, Bhonu Mahto fired
shot from his rifle which hit on his back above waist,
Surajan Mahto fired shot from his gun which hit Ram
Swarath on his head, Lalmuni Chauhan fired shot from his
gun which hit Ram Swarath on his abdomen, Binda also
fired shot from his rifle which hit Ram Swarath on his
back and Karu Mahto fired shot from his pistol at him but
he remained unhurt. Being injured Ram Swarath and Pramod
fell down and died on the spot and then all the accused
persons fled away. He has further deposed that Ram
Swarath and Pramod used to send labourers to the brick-
kiln in Patna. Dharamjay Mukhiya used to demand Rs.10/-
per labourer as extortion money from them but Ram Swarath
told that he was a poor man and was not in a position to
pay money whereupon Mukhiya Jee had threatened him to
teach lesson. He has further deposed that the police had
recorded his statement at his house at about 10 O’ clock
in the night and on the said statement, he had put his
signature (Ext.4) which was also signed by witnesses,
namely, Shiv Balak and Kailash Prasad Chauhan whose
14
signatures have been marked as Exts. 4/1 and 4/2,
respectively.
At paragraph 16 of his evidence, P.W.5 has stated
that he had gone to Barh P.S. with Baleshwar Paswan
(C.W.3) and returned from that place along with the
police. The police had made enquiry from him at the
police station. He has further deposed that he had not
stated the name of the accused persons to S.I. of Police
at Barh P. S. rather at his house he disclosed the names
of the accused persons. He has further deposed that he
along with Baleshwar stayed at the police station for
about one to one and half hours and although S.I. of
Police and the constables were present at the police
station but they did not obtain his signature or his
thumb impression on any paper. At paragraph 17, P.W.5 has
deposed that after coming to the place of occurrence,
S.I. of Police firstly prepared inquest reports of the
dead bodies in presence of Shiv Balak, Kailash and Kesho
Chauhan and then recorded his statement. At paragraph 23
he has deposed that besides the members of his family,
many people of the village from far off and neighbouring
area had watched the occurrence. At paragraph 30, P.W.5
has deposed that the accused persons had fired at lest 8
to 9 shots and even at the time of running away, they had
fired 2 to 3 shots. At paragraph 35, he has deposed that
the blood in huge quantity had fallen at the place of
occurrence which was in the area of 2′ to 3′ on the land
where Pramod had fallen. He has further deposed that the
15
blood was also spread in an area of 2′ to 3′ on the land
where Ram Swarath had fallen. At paragraph 49, P.W.5 has
stated that when he had gone to Barh Police station with
the Chowkidar four more persons had also accompanied him
at that time. He was crying there and sitting near the
police Station and did not know whether any person
informed the police about the occurrence but he could not
tell the names of the accused persons because he was
shocked. At paragraph 51, P.W.5 has deposed that after
arrival of the police he and his father discussed about
the occurrence and names of the accused persons to be
given to the police. At paragraph 53 he has denied the
suggestion that his fardbeyan was changed by the police.
At paragraph 63, he has stated that Dharamjay Mukhiya had
never demanded any extortion money in his presence.
16. Chhathu Prasad is P.W.6. He is a co-villager of the
informant. His evidence is that the occurrence took place
on 12.7.1994 and on hearing sound of firing he went to
Dalan of Kesho Chauhan at about 4 P.M. and saw the dead
bodies of Pramod and Ram Swarath lying there with mark of
bullet injury. The police arrived at the place of
occurrence at about 6 A.M. and prepared inquest reports
of both the dead bodies on which he put his signatures
(Exts. 4/2 and 4/3). He has also proved the signatures of
witness Sahdeo Chauhan on the two inquest reports which
have been marked as Exts.4/4 and 4/5. At paragraph 24 of
his cross-examination, this witness has deposed that
there is interpolation on Ext.3 and there is overwriting
16
on the date and after overwriting date “12/7” has been
written as “13/7”.
17. P.W.7 Rajendra Prasad Yadav is again a formal
witness. He has proved the fardbeyan recorded by S. I.
Sri Peyush Kant which has been marked Ext.5. He has also
proved the signature of Sri Bigulgari, Officer Incharge
on the first information report. Being formal witness,
the evidence of P.W.7 is not material in this case.
18. Now turn comes to the evidence of the court
witness as I have already stated above that four
witnesses were examined as court witnesses under the
provisions of Section 311 of the Code of Criminal
Procedure. The first witness is Bigulgari, Inspector of
Police Barh Police Station. He is the Investigating
Officer of this case. His evidence is that on 13.7.1994
he was posted as Officer Incharge at Barh P.S. On that
day he received the fardbeyan of the informant Harif
Nonia of village Shaidpur recorded by S.I. Peyush Kant on
the basis of which he registered this case and took up
investigation. During investigation he visited the place
of occurrence which is Dalan of the informant and the
deceased persons situated at village Shaidpur facing
east. There are two rooms inside the verandah of Dalan.
On the same verandah, he found the dead body of Ram
Swarath Chauhan lying towards south and the dead body of
Pramod lying towards north which was lying in a pool of
blood. He found a cot kept in the courtyard in front of
verandah. He also found the blood fallen on the ground
17
below the cot and on the cot. At paragraph 8, he has
deposed that there is no mention about the deputation of
S.I. Peyush Kant in the case diary in connection with
this case. At paragraph 17, he has deposed that from the
case diary it would not be clear as to when S.I. Peyush
Kant had left for place of occurrence. At paragraph 21,
he has deposed that Peyush Kant had prepared the inquest
reports. At paragraph 34, he has deposed that he had not
collected the evidence with regard to sending of the
labourers to the brick-kiln by the deceased. At paragraph
43, he has denied that he changed the first fardbeyan.
19. C.W.2 is Shiv Balak Nonia. His evidence is that on
12.7.1994 at about 4 P.M. he was at the Dalan of Ram
Swarath. His brother Kesho Nonia, Ram Swarath Nonia,
Pramod Nonia, Harif Nonia, Manoj Nonia were also there.
In the meantime, Dharamjay Mukhiya, Bablu Mahto, Bhonu
Mahto, Binda Mahto, Surajan Mahto, Lalmuni Chauhan alias
Chunnu Chauhan and Karu Mahto came there. Bablu Mahto,
Bhonu Mahto and Binda Mahto were armed with rifles,
Surajan Mahto and Lalmuni Chauhan were armed with gun,
Karu Mahto was armed with pistol and Dharamjay Mukhiya
was unarmed. All of them came to Dalan. Dharamjay Mukhiya
asked Ram Swarath and Promod to remain sitting there
whereupon Ram Swarath and Pramod stood up and tried to
flee away then Dharamjay Mukhiya shouted to kill him.
Then all the above named accused persons entered into the
verandah. Bablu Mahto fired with his rifle at Pramod on
his chest, Bhonu Mahto fired with his rifle at Pramod on
18
his back just above the waist, Surjan Mahto fired with
his gun at Ram Swarath on his head, Lalmuni Chauhan fired
with his gun at Ram Swarath on his abdomen, Binda fired
with his rifle at Ram Swarath on his back above the
waist. Ram Swarath and Pramod fell down. Karu Mahto fired
with his pistol at Harif but missed. Pramod died at the
spot and later on, Ram Swarath also died. At paragraph 7,
he has deposed that deceased persons used to supply
labourers to the brick-kiln. Dharamjay Mukhiya used to
demand Rs.10/- per labourer as extortion money. At
paragraph 15 he has deposed that he had gone to inform
Baleshwar Chowkidar and he came to know that Baleshwar
Paswan had gone to Police Station to inform the police
about the occurrence. At paragraph 18, he has deposed
that he had gone to Barh Police Station with the dead
body. About 40 to 50 people of the village had also gone
and he had stayed at Barh for the whole night and
returned home next day after cremating the dead body.
20. C.W.3 is Baleshwar Paswan, Chowkidar 9/3. His
evidence is that about 3 to 4 years ago at about 3 P.M.
Harif Nonia (informant) had come running to his village.
He (Harif Nonia) told him that murder has been committed
at his house and asked him to come to the Police Station.
Harif Nonia did not disclose who had killed whom,
although he had made enquiry from Harif Nonia with regard
to the names of the assailants and deceased. He has
further deposed that when he reached village Shaidpur at
the house of Harif Nonia he saw two dead bodies lying by
19
the side of ditch (not at verandah) which was in front of
the house of Harif Nonia at a distance 5 to 6 Bans. The
dead bodies were of Ram Swarath and his son. He has
further deposed that he went to Barh Police Station with
Harif Nonia and firstly, he along with Harif Nonia went
to the Dy.S.P. Dy.S.P. directed him to go to the police
station. And then both came to the Barh Police Station.
The S.I. of Police interrogated Harif Nonia and then both
the persons returned to village Shaidpur with S.I. Peyush
Kant. At paragraph 11 C.W.3 has deposed that he had made
enquiry from Harif Nonia as to who were the assailants.
He did not disclose the name of any person. He again
asked the names of the assailants but Harif Nonia did not
disclose the name of any accused. At paragraph 17 C.W.3
has deposed that Harif Nonia had not stated the name of
any accused at the police station.
21. C.W.4 is Peyush Kant, Sub-Inspector of Police,
Barh Police Station. His evidence is that he had recorded
the fardbeyan of the informant (Ext.5) and had prepared
the inquest reports of the two dead bodies which have
been marked as Exts. 3 and 3/1. He has further deposed
that he got information about the occurrence through
rumour that firing was going on in village Shaidpur and
then he rushed to village Saidpur. At paragraph 10 he
has admitted that there is overwriting in column 8 of
Exhibit 3 below the signatures of Chhathu Prasad and
Sahdeo Prasad and there are over-writings in the date
mentioned at columns 3, 8 and 9 of Ext.3/1. At paragraph
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17 he has denied the suggestion that he had changed the
original fardebyan of this case.
22. It appears from the record that on the direction of
the High Court, an enquiry was conducted with regard to
the genuineness of the fardbeyan and during enquiry, this
witness admitted that it is a fact that fardbeyan as well
as inquest reports are not in his handwritings. Thus, it
is established beyond doubt that the statement of the
informant that C.W.4 Peyush Kant had recorded his
fardbeyan is totally false. Likewise, the statement of
C.W.4 Peyush Kant that he had prepared inquest reports of
dead bodies is also false.
23. The contention of the defence counsel was that the
first information report which was in the handwriting of
Peyush Kant was changed and substituted with the present
fardbeyan as in the first fardbeyan no name of any
accused was mentioned. His submission was that besides
the admission of C.W.4 Peyush Kant that the fardbeyan and
inquest reports were not in his handwritings and he has
wrongly deposed that the fardbeyn and inquest reports
were in his handwriting, there are other evidence on
record to believe that the original fardbeyan had been
changed. In this regard first of all he has referred the
evidence of C.W.3 Baleshwar Paswan Chowkidar No.9/3 who
has deposed that he had accompanied the informant to Barh
P.S. and at Barh P.S., S.I. of Police had interrogated
Harif Nonia but Harif Nonia had not stated the names of
the accused persons at the time of his statement at the
21
police Station (vide paragraph 17). He submitted that
this statement of C.W.3 further finds corroboration from
the evidence of P.W.5 Harif Nonia(informant) who has
deposed at paragraph 16 that he had gone to Barh P.S.
with Baleshwar Paswan (C.W.3) and the police had enquired
him at the police station but he had not stated the names
of the accused persons to S.I. of Police at Barh Police
Station. He again referred paragraph 49 in which
informant (P.W.5) has stated that after the occurrence
when he had gone to Barh Police Station with Chowkidar
four more persons had accompanied him at that time, when
the police asked him he simply said that the murder had
been committed but he could not tell the names of the
accused persons because he was shocked. The learned
defence counsel again referred paragraph 18 of C.W.2 Shiv
Balak Nonia in which he has stated that he had gone to
Barh Police Station with dead body, about 40 to 50 people
of the village had also gone but he had not talked with
anyone at Barh Police Station and after the post mortem
he returned to the village on the next day. I have gone
though the above referred statements of the witnesses and
I am in full agreement with the view of the learned
defence counsel that the above statements of the
witnesses establish beyond doubt that for the first time
when the informant along with C.W.2 Shiv Balak Nonia and
C.W.3 Baleshwar Paswan Chowkidar went to Barh Police
station, neither he nor any other persons disclosed the
names of any accused which establishes beyond doubt that
22
the fardbeyan of this case is ante-dated and probably has
been changed in view of the admission of C.W.4 Peyush
Kant that the same is not in his handwriting. The fact
that the dead bodies were also brought to the police
Station vide paragraph 18 of C.W.3 establishes that
before recording the fardebyan the dead bodies were
removed from the place of occurrence and so, the
preparation of inquest reports at the place of occurrence
by C.W.4 Peyush Kant is also doubtful and this doubt is
confirmed by the admission of C.W.3 in the enquiry that
the inquest reports are not in his handwritings. Thus,
the first contention of the learned defence counsel that
the fardebyan is ante-dated and perhaps substituted,
becomes established.
24. The next contention of the learned defence counsel
was that neither the informant nor any other witnesses
are actually the eye-witnesses of the occurrence and that
they had not seen the actual occurrence and in this
connection he has placed reliance upon the evidence of
the doctor. The evidence of the doctor, who is P.W.2,
shows that he had found only one fire-arm injury on the
person of each of the deceased. According to him, one
injury was wound of entry and another injury was wound of
exit but according to the evidence of P.W.3, P.W.5
(informant) and C.W.2, firstly Bablu Mahto shot at
deceased Pramod Chauhan on his chest, then Gonu shot at
him with rifle causing injury on his back and chest.
Likewise, according to the evidence of above said three
23
witnesses, Ram Swarath was shot at by Surjan Mahto,
Lalmuni Chauhan and Binda Mahto. Thus, the presence of
only one fire-arm injury on each of the deceased
establishes beyond doubt that the prosecution case that
the deceased Pramod had been shot at by two persons and
Ram Swarath had been shot at by three persons is false.
Under such circumstance, I have no hesitation to hold
that the manner of occurrence, as disclosed in the
fardebyan and in the evidence of the prosecution
witnesses and in the evidence of the court witnesses,
does not stand proved rather it stands falsified by the
evidence of the doctor.
25. The next contention of the learned defence counsel
was that the prosecution has also failed to establish the
place of occurrence of this case. In this regard, he has
referred the evidence of C.W 3 Chowkidar Baleshwar
Paswan, who has deposed that he had seen the dead bodies
in the ditch in front of the verandah of the informant
and not at his verandah when he for the first time
visited the place of occurrence. The learned defence
counsel submitted that the statement of C.W.3 establishes
that verandah was not the place of occurrence as
disclosed in the fardbeyan and in the evidence of the
prosecution witness. I am of the view that this
contention of the leaned defence counsel also finds
support from the evidence of C.W.1 Bigulgari who is the
Investigating Officer of this case who has deposed at
paragraph 2 that he had found the dead bodies of Ram
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Swarath and Pramod lying on the verandah but he had found
the blood lying on the ground below the cot which was
kept in front of verandah. The evidence of C.W.1 does not
disclose that the blood in huge quantity was found lying
on the verandah where the dead bodies were found lying.
This goes to show that the verandah is not the actual
place of occurrence. The presence of blood at the cot
kept in front of verandah and below the said cot,
establishes that both the dead bodies were taken out from
some other places. The evidence of the Chowkidar that he
had found the dead bodies in ditch shows that there was
every possibility that the dead bodies were brought to
the verandah from the said place and non-presence of
blood at the verandah and non-seizure of the blood from
the said verandah establishes that the verandah is not
the actual place of occurrence. Moreover, the evidence of
C.W.1 as well as C.W.4 Peyush Kant does not show that
they had seen any mark of violence caused by fire-arm at
the wall or surface of the verandah nor the evidence
shows that they had recovered any bullet or pellet from
the said place. This fact also establishes that the
verandah is not the actual place of occurrence. Under the
circumstances, I hold that the prosecution has also
failed to prove the place of occurrence of this case.
26. As regards the motive, I find no supporting evidence
that the appellant Dharamjay Mukhiya had ever demanded
any Rangdari tax from the deceased in presence of any
witnesses and so, the motive does not stand proved.
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27. On the basis of the evidence discussed above, I am
of the view that the prosecution has miserably failed to
prove the charges levelled against the appellants and as
such, the conviction of the appellants under Section
302/34 of the I.P.C. and under Section 27 of the Arms Act
cannot be upheld. Consequently, the death sentence passed
against appellant Dharamjay Prasad Mukhia for the offence
of murder under Section 302/34 of the I.P.C. and the
sentence of rigorous imprisonment for life passed against
appellants, Karu Mahto and Binda Mahto as well as R.I.
for seven years awarded to them under Section 27 of the
Arms Act cannot he upheld.
28. In the result, Death Reference No.5 of 2004 is
answered in the negative and separate criminal appeals
filed by three appellants bearing Criminal Appeal No.284
of 2004(DB), Criminal Appeal No.286 of 2004(DB) and
Criminal Appeal No.335 of 2004 are allowed. The
conviction and death sentence passed against Dharamjay
Prasad @ Dharamjay Mahto under Section 302/34 of the
Indian Penal Code are set aside. The conviction and
sentence passed against the appellants Karu Mahto and
Binda Mahto under Section 302/34 of the I.P.C. as well as
under Section 27 of the Arms Act are also set aside.
Accordingly, all the three appellants are acquitted of
their respective charges framed under Section 302/34 of
the I.P.C. and under Section 27 of the Arms Act.
Appellants, namely, Karu Mahto and Binda Mahto are on
bail, as such they are discharged from the liability of
26
their bail bonds. Appellant Dharamjay Mahto @ Dharamjay
Mahto is in jail, he is directed to be set at liberty at
once, if not wanted in any other case.
(Syed Md. Mahfooz Alam, J.)
Mridula Mishra,J. I agree.
(Mridula Mishra, J.)
Patna High Court, Patna
The 28th November, 2008
A.F.R. (B.T.)
