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Karu Mahto vs State Of Bihar on 28 November, 2008

Patna High Court
Karu Mahto vs State Of Bihar on 28 November, 2008
Author: Smt. Mridula Mishra
           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
20

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
24

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.
25

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.)

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