{"id":210664,"date":"2008-11-28T00:00:00","date_gmt":"2008-11-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dharamjay-prasad-on-28-november-2008"},"modified":"2018-08-30T05:03:51","modified_gmt":"2018-08-29T23:33:51","slug":"state-of-bihar-vs-dharamjay-prasad-on-28-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dharamjay-prasad-on-28-november-2008","title":{"rendered":"State Of Bihar vs Dharamjay Prasad on 28 November, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
State Of Bihar vs Dharamjay Prasad on 28 November, 2008<\/div>\n
Author: Smt. Mridula Mishra<\/div>\n
           DEATH REFERENCE No.5 OF 2004\n                    ***\n<\/pre>\n
STATE OF BIHAR—————————–APPELLANT
\n                     Versus
\nDHARAMJAY PRASAD————————–RESPONDENT
\n                        WITH<\/p>\n
CR. APP (DB)      No.284 of      2004
\nDHARAMJAY PRASAD @ DHARAMJAY MAHTO
\nSON OF LATE BALDEO MAHTO, RESIDENT OF VILLAGE
\nSARKATTI, P.S. BARH, DISTRICT PATNA——–APPELLANT
\n                    Versus
\nSTATE OF BIHAR—————————-RESPONDENT
\n                        WITH<\/p>\n
CR. APP (DB)      No.286 of      2004
\nKARU MAHTO, SON OF LAKHAN MAHTO, RESIDENT OF VILLAGE
\nSAIDPUR, P.S. BARH, DISTRICT PATNA———APPELLANT
\n                     Versus
\nSTATE OF BIHAR—————————-RESPONDENT
\n                        WITH<\/p>\n
(CR. APP (DB)      No.335 of      2004
\nBINDA MAHTO, SON OF LATE SATYA DEO @ SAHDEO MAHTO,
\nRESIDENT OF VILLAGE SARKATTI, P.S. BARH, DISTRICT,
\nPATNA—– ——————————–APPELLANT
\n                         Versus
\nSTATE OF BIHAR—————————-RESPONDENT
\n                         ***<\/p>\n
Reference made by Sri Md. Abdul Baqui, Additional
\nDistrict & Sessions Judge, IV, Barh (Patna) vide
\nletter no.100\/04 dated 25th day of March, 2004 and
\ncriminal   appeals   against  the  judgment  dated
\n22.3.2004 and order dated 24.3.2004 in Sessions
\nTrial No.686 of 1995.\n<\/p>\n
                         ***<\/p>\n
For the Appellants : M\/s Abhay Kumar Singh, Parmatma
\n                     Singh, Brajesh Kumar & Bharat
\n                     Bhushan, Advocates (In Criminal
\n                     Appeal No.284\/04)<\/p>\n
                     Mr. B.K.Roy, Advocate
\n                    (In Criminal Appeal No. 286\/04)<\/p>\n
                    M\/s Rajendra Narain, Nawal
\n                    Kishore Prasad & Satyendra
\n                                                       2<\/span><\/p>\n
                                                   Prasad, Advocates
\n                                                   (In Criminal Appeal No.335\/04)<\/p>\n
                         For the State           : Mr. Lala Kailash Bihari Prasad,
\n                                                   Additional P.P. (In all
\n                                                   Criminal Appeals)<\/p>\n
                                                          ***<\/p>\n
                                             P R E S E N T
\n                              THE HON’BLE JUSTICE SMT. MRIDULA MISHRA<\/p>\n
                             THE HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM<\/p>\n
                                                    ***<\/p>\n
S.M.M.Alam, J.          Death Reference No.5 of 2004 (State of Bihar Versus<\/p>\n
                 Dharamjay    Prasad)      and    three    criminal         appeals    bearing<\/p>\n
                 Criminal    Appeal   No.284      (D.B.)        (Dharamjay     Prasad    alias<\/p>\n
                 Dharamjay Mahto) as well as Criminal No.286 of 2004(D.B.)<\/p>\n
                 (Karu    Mahto   Versus    The    State        of    Bihar)   and    Criminal<\/p>\n
                 Appeal No.335 of 2004 (D.B.)(Binda Mahto Versus The State<\/p>\n
                 of Bihar) arise out of one and the same judgment dated 2nd<\/p>\n
                 Day of March, 2004 passed in Sessions Trial No.686 of<\/p>\n
                 1995 by 4th Additional District & Sessions Judge, Barh<\/p>\n
                 whereby and whereunder all the three appellants along<\/p>\n
                 with     three   other    accused,       who        are   absconders,    were<\/p>\n
                 convicted for the offence under Section 302\/34 of the<\/p>\n
                 Indian Penal Code. Besides that, appellants Karu Mahto<\/p>\n
                 and Binda Mahto were also convicted for the offence under<\/p>\n
                 Section 27 of the Arms Act. For the offence under Section<\/p>\n
                 302\/34 of the I.P.C., appellant Dharamjay Prasad Mukhiya<\/p>\n
                 was sentenced to death and ordered to be hanged by neck<\/p>\n
                 till his death. The other two appellants, namely, Karu<\/p>\n
                 Mahto and Binda Mahto, were sentenced to imprisonment for
\n                                        3<\/span><\/p>\n
life under Section 302\/34 of the Indian Penal Code and<\/p>\n
further sentenced for seven years rigorous imprisonment<\/p>\n
for the offence under Section 27 of the Arms Act. The<\/p>\n
learned Additional Sessions Judge observed with direction<\/p>\n
that    both     the    sentences      shall      run   concurrently.           For<\/p>\n
confirmation       of    death    sentence        awarded     to     appellant<\/p>\n
Dharamjay Prasad Mukhiya, the learned Additional Sessions<\/p>\n
Judge     made    reference       to       this    Court     whereas          three<\/p>\n
appellants       filed    separate       three     criminal     appeals         and<\/p>\n
thus,    the     above-mentioned         death     reference       along       with<\/p>\n
three criminal appeals are before us.\n<\/p>\n
2.      The    prosecution       case,      as    per      Exhibit       5,     the<\/p>\n
fardbeyan of informant Harif Nonia (P.W.5) son of Keshav<\/p>\n
Nonia    of    village    Shaidpur,        P.S.    Barh,    District          Patna<\/p>\n
recorded by S.I., Pyush Kant of Barh P.S. on 12.7.94 at<\/p>\n
22 hours at village Saidpur, in brief, is that on the<\/p>\n
same day at about 4 P.M. while he along with his brother<\/p>\n
Ram swarath Chauhan, his nephew Pramod Chauhan, Manish<\/p>\n
Nonia,    his    uncle    Shiv    Balak      Chauhan    along      his    father<\/p>\n
Keshav Nonia were sitting together                  at the outer portion<\/p>\n
of his house (Dalan), they saw co-villagers Bhonu Mahto<\/p>\n
armed with rifle and Karu Mahto armed with pistol; Bablu<\/p>\n
Mahto, Binda Mahto of village Sarkatti armed with rifle,<\/p>\n
Surjan Mahto, Lalmuni Chauhan alias Chunnu Chauhan of<\/p>\n
village Chakjalal, P.S. Bhadaur armed with gun along with<\/p>\n
appellant Dharamjay Prasad Mukhiya coming to his Dalan.<\/p>\n
As soon as they reached at his Dalan, Dharamjay Prasad<\/p>\n
Mukhiya shouted and ordered Ram Swarath and Pramod (both
\n                                       4<\/span><\/p>\n
deceased to remain sitting otherwise they would be shot<\/p>\n
at. Being afraid, the informant along with Ram Swarath<\/p>\n
and    Pramod   and      others    tried     to     flee    away   whereupon<\/p>\n
appellant     Dharamjay     Prasad        Mukhiya    gave     order     to   his<\/p>\n
associates to shoot both the deceased.                     On getting order<\/p>\n
from the appellant Dharamjay Prasad, all other accused<\/p>\n
persons entered into Dalan of the informant and accused<\/p>\n
Bablu Mahto opened fire from his rifle upon Pramod which<\/p>\n
caused   injury     on    his     chest.    Thereafter        accused    Bhonu<\/p>\n
Mahto opened fire from his rifle causing injury to Pramod<\/p>\n
on his back just above his waist. After that, accused<\/p>\n
Surjan Mahto (absconding accused who did not face trial)<\/p>\n
opened fire from his gun at Ram Swarath which hit on his<\/p>\n
head who fell down and immediately thereafter accused<\/p>\n
Lalmuni Chauhan alias Chunnu Chauhan opened fire from his<\/p>\n
gun which punctured into the abdomen of Ram Swarath and<\/p>\n
appellant Binda Mahto opened fire from his rifle causing<\/p>\n
injury to Ram Swarath on his back. On receiving fire-arm<\/p>\n
injuries, Pramod Chauhan and Ram Swarath both fell down<\/p>\n
and died on the spot. It is further stated that appellant<\/p>\n
Karu Mahto also opened fire from his pistol aiming at the<\/p>\n
informant but the informant escaped unhurt. It is stated<\/p>\n
that after the occurrence all the accused persons raising<\/p>\n
slogans ran towards village Sarkatti. The motive behind<\/p>\n
the murder was that deceased Ram Swarath and his son<\/p>\n
Pramod used to supply labourers to work in the brick-kiln<\/p>\n
at    Patna   and   appellant       Dharamjay        Prasad    Mukhiya       was<\/p>\n
demanding Rs.10\/- per labourer as his commission to which
\n                                          5<\/span><\/p>\n
deceased Ram Swarath did not agree and due to that, all<\/p>\n
the accused persons under the leadership of Dharmajay<\/p>\n
Prasad Mukhiya committed murder of Ram Swarath and his<\/p>\n
son Pramod Chauhan. After the occurrence the informant<\/p>\n
Harif Nonia asked Shiv Balak Nonia (C.W.2) to inform the<\/p>\n
local   Chawkidar,      namely,         Baleshwar       Paswan   (C.W.3)      for<\/p>\n
giving information of the occurrence to the concerned<\/p>\n
Police Station whereupon Chawkidar Baleswhar Paswan went<\/p>\n
to   Barh    Police    Station      along       with    the    informant      and<\/p>\n
thereafter Sub-Inspector Pyush Kant (C.W.4) rushed to the<\/p>\n
place   of    occurrence          and        reached    at     the    place    of<\/p>\n
occurrence at about 10.00 P.M. on the same day where he<\/p>\n
recorded the fardbeyan of informant Harif Nonia (P.W.5).<\/p>\n
After recording the fardbeyan he sent the same to Barh<\/p>\n
P.S. where on receipt of the same, Inspector of Police<\/p>\n
cum-Officer Incharge Bigul Gari registered a case bearing<\/p>\n
Barh P.S. Case No.261 dated 13.7.1994 for the offence<\/p>\n
under Sections 147, 148, 149, 302 of the India Penal Code<\/p>\n
and on that basis, he drew up a formal F.I.R. (Ext.1).<\/p>\n
After registering the case at 4.00 P.M., the said Officer<\/p>\n
Incharge     Bigul     Gari   (C.W.1)          rushed    to    the    place    of<\/p>\n
occurrence     at     about   6     P.M.       on   13.7.1994        to   village<\/p>\n
Shaidpur and on reaching at the place of occurrence, he<\/p>\n
got the inquest reports prepared vide Exts.3 and 3\/1 and<\/p>\n
sent the dead bodies of the deceased for post mortem. The<\/p>\n
post mortem was conducted by Dr.Nagina Paswan of Sadar<\/p>\n
Hospital,     Barh      as    per        Exts.      2    and     2\/1.     During<\/p>\n
investigation, C.W.1 Bigul Gari seized the blood stained
\n                                          6<\/span><\/p>\n
earth and other materials from the place of occurrence<\/p>\n
and prepared seizure list, recorded the statements of the<\/p>\n
witnesses, inspected the place of occurrence, obtained<\/p>\n
post   mortem      reports     and     thereafter       submitted    separate<\/p>\n
charge sheet in all three appeals against the appellants<\/p>\n
and    others     accused      persons        showing    Surjan     Mahto     as<\/p>\n
absconder.\n<\/p>\n
3.     On    submission      of    the       charge   sheet,   the       learned<\/p>\n
Additional        Chief      Judicial          Magistrate,        Barh      took<\/p>\n
cognizance of the offence against accused persons under<\/p>\n
Sections 147, 148, 149, 302 and 307 of the Indian Penal<\/p>\n
Code   and    Section     27      of   the     Arms   Act.   Thereafter      on<\/p>\n
13.8.1995 he committed the case to the Court of Session.<\/p>\n
Thereafter the appellants along with others were tried<\/p>\n
and convicted and sentenced, as stated above. Appellant<\/p>\n
Dharamjay Prasad Mukhiya was sentenced to death for the<\/p>\n
offence under Section 302\/34 of the Indian Penal Code by<\/p>\n
the learned Additional Sessions who made reference for<\/p>\n
confirmation of death sentence.\n<\/p>\n
4.     The specific defence of appellant Dharamjay Mahto<\/p>\n
alias Dharamjay Mukhiya is that Ex-Mukhiya Madan Mohan<\/p>\n
Singh,      who   lost   election      of     Mukhiya    against     him,    has<\/p>\n
falsely implicated him in this case. His further defence<\/p>\n
is that the father of informant, namely, Keshav Chauhan<\/p>\n
has illegally encroached Gairmazarua Aam land for which<\/p>\n
he had reported the matter to the Senior S.P. and due to<\/p>\n
that, the informant after bringing Sub-Inspector, Peyush<\/p>\n
Kant in his collusion, falsely implicated him in this
\n                                            7<\/span><\/p>\n
case    after     changing         the    original       F.I.R.       His     further<\/p>\n
defence is that on the alleged date of occurrence he was<\/p>\n
attending the meeting of Janata Dal at M.L.A. Club and<\/p>\n
was not present on the village. The defence of the other<\/p>\n
accused is of false implication.\n<\/p>\n
5.      In   order     to    prove      the     case,    the    prosecution         has<\/p>\n
examined seven witnesses in this case, namely, Ram Sagar<\/p>\n
Prasad (P.W.1), Nagina Paswan (P.W.2), Chandrika Prasad<\/p>\n
(P.W.3), Dulari Devi @ Sundari Devi (P.W.4), Harif Nonia<\/p>\n
@ Chauhan (P.W.5), Chhattu Prasad (P.W.6) and Rajendra<\/p>\n
Prasad Yadav (P.W.7). Out of the aforesaid witnesses,<\/p>\n
P.Ws. 1 and 7 are the formal witnesses. They have proved<\/p>\n
the formal F.I.R. and fardbeyan of the informant besides<\/p>\n
the    entire    case       diary       which    are     Exts.    1,    5     and    6,<\/p>\n
respectively.          Out of the remaining witnesses, P.W.2 is<\/p>\n
the doctor, who had conducted post mortem examination on<\/p>\n
the dead body of both the deceased. P.W.4 Dulari Devi @<\/p>\n
Sundari      Devi,     who    is     said      to   be   the     mother       of    the<\/p>\n
informant and deceased Ram Swarath and grand-mother of<\/p>\n
deceased Pramod Chauhan, has been tendered for cross-<\/p>\n
examination. P.W.6 Chhattu Prasad is a witness of the<\/p>\n
inquest reports which are Exts. 3 and 3\/1. P.W.3 is an<\/p>\n
independent witness whereas P.W.5 is the informant of<\/p>\n
this case.\n<\/p>\n
6.      From    the    record        it    transpires          that    four    other<\/p>\n
witnesses       were    also    examined         under    the     provisions        of<\/p>\n
Section 311 of the Code of Criminal Procedure. They are<\/p>\n
Bigul    Gari    Inspector         of     Police-cum-I.O.         (C.W.1),         Shiv
\n                                            8<\/span><\/p>\n
Balak Nonia (C.W.2), Chowkidar Baleshwar Paswan (C.W.3)<\/p>\n
and Peyush Kant Inspector of Barh P.S. (C.W.4). It is<\/p>\n
stated that this witness had recorded the fardbeyan of<\/p>\n
the   informant        and    had     prepared         inquest     reports.       The<\/p>\n
fardbeyan of the informant is the basis of this case.<\/p>\n
7.      The    defence    has       also       examined     ten    witnesses       in<\/p>\n
support of the defence case. They are Lakhan Mahto D.W.1,<\/p>\n
Kamlakant       Prasad       Sharma     D.W.2,         Arjun      Sharma    D.W.3,<\/p>\n
Ramakant      Prasad     Singh      D.W.4,       Bal    Govind     Prasad       Singh<\/p>\n
D.W.5,    Krishnadeo         Prasad    Singh       D.W.6,      Birendra     Prasad<\/p>\n
Singh D.W.7, Nityanand Singh D.W.8, Umesh Prasad Singh<\/p>\n
D.W.9    and    Arun     Prasad       D.W.10.      The      defence     has      also<\/p>\n
produced       some    documents       which        have       been    marked      as<\/p>\n
exhibits.\n<\/p>\n
8.      Let me see – whether on the basis of the materials<\/p>\n
available on record, the prosecution case, as disclosed<\/p>\n
in the fardbeyan (Ext.3) of the informant (P.W.5), has<\/p>\n
been proved beyond all reasonable doubts or not ?<\/p>\n
9.      In order to find out – whether on the basis of the<\/p>\n
materials available on record it can be held that the<\/p>\n
prosecution has been able to substantiate the charges<\/p>\n
levelled       against        the     accused          persons        beyond      all<\/p>\n
reasonable doubt, I would like to firstly discuss the<\/p>\n
evidence of the prosecution witnesses and the evidence of<\/p>\n
the court witnesses. As stated above, altogether seven<\/p>\n
witnesses       have      been       examined          on    behalf        of     the<\/p>\n
prosecution. P.W.1 is Ram Sagar Prasad. He is a formal
\n                                      9<\/span><\/p>\n
witness. He has proved the formal F.I.R which has been<\/p>\n
marked as Ext.1.\n<\/p>\n
10.     P.W.2 is Dr. Nagina Prasad, who had conducted post<\/p>\n
mortem examination on the dead body of Pramod Chauhan and<\/p>\n
Ram Swarath Chauhan on 13.7.94 at 4.45 P.M. and 5.20 P.M.<\/p>\n
His evidence is as follows :-\n<\/p>\n
On 13.7.1994 at 4.45 P.M. he had conducted post mortem<\/p>\n
examination on the dead body of Pramod Chauhan and found<\/p>\n
the following injuries.\n<\/p>\n
The eyes were open. Mouth was closed. Rigor mortis was<\/p>\n
present in all four limbs.\n<\/p>\n
                          (i)Circular          shaped     lacerated       wound\n\n                          over interior surface of left chest\n\n                          adjacent       to    sternum     1\"    in   diameter\n\n                          margin was inverted. Skin was black\n\n                          and charred.\n\n<\/pre>\n
In surrounding area there were multiple dots like burns.<\/p>\n
Track    passes    inward.    Sternum         was     fractured.      This   was<\/p>\n
wound of the entry.<\/p>\n
\n\n                          (ii) Circular shaped lacerated wound\n\n                          over the back of abdomen adjacent to\n\n                          lumber     vertebra          1\/1\"     in    diameter\n\n                          margin was inverted.\n\nOn    dissection    skull    meninges         and     brain     matters      were\n\nintact,    lungs   were     pale,   liver       was     pale,    kidneys     and\n\n<\/pre>\n
spleen were pale. Heart was ruptured and left side of<\/p>\n
diaphragm was also ruptured and directed towards abdomen.<\/p>\n
Stomach     contained       digested          food.     Small     and     large
\n                                        10<\/span><\/p>\n
intestine      was    full    of    gases.     Time       passed    since    death<\/p>\n
within 6 to 46 hours from the time of examination. Cause<\/p>\n
of death was due to shock and haemorrhage caused by fire-<\/p>\n
arm injury. He has proved post mortem report which has<\/p>\n
marked as Ext.2.\n<\/p>\n
11.    P.W.2 has further deposed that on the same day at<\/p>\n
5.20 P.M. he held post mortem examination on the dead<\/p>\n
body   of    Ram     Swarath       Chauhan    and        found   the   following<\/p>\n
injuries.\n<\/p>\n
Eyes were semi-open; mouth was closed; rigor mortis was<\/p>\n
present in all four limbs.<\/p>\n
\n\n         (i)         Circular shaped lacerated wound over the\n\n                     left     iliac        region        with    blackened    and\n\n                     charred skin, margin was inverted \u00bc\" in\n\n                     diameter. This was wound of entry.\n\n         (ii)        Circular shaped lacerated wound over the\n\n<\/pre>\n
                     back of abdomen just above the left iliac<\/p>\n
                     next \u00bd” in diameter, margin inverted. This<\/p>\n
                     was wound of exit.\n<\/p>\n
On    dissection,      skull       meninges        in    brain     matters    were<\/p>\n
intact lung, liver, kidneys, spleen were pale. Heart was<\/p>\n
empty,      stomach     was        empty     and        small    intestine    was<\/p>\n
ruptured. The age of injuries was within 6 to 36 hours.<\/p>\n
Cause of death was due to shock and haemorrhage caused by<\/p>\n
injuries of fire-arms such as rifles and guns. He has<\/p>\n
proved post mortem report of deceased Ram Swarath Chauhan<\/p>\n
which has been marked as Ext.2\/1. He has also proved two
\n                                           11<\/span><\/p>\n
inquest reports of the aforesaid deceased which have been<\/p>\n
marked as Exts.3 and 3\/1, respectively.\n<\/p>\n
12.     The    evidence      of    P.W.2        coupled       with    post       mortem<\/p>\n
reports Exts. 2 and 2\/1 and the inquest reports Exts. 3<\/p>\n
and   3\/1      establishes        beyond        doubt       that    the    death     of<\/p>\n
deceased       Pramod      Chauhan       and     Ram       Swarath    Chauhan       was<\/p>\n
homicidal caused by fire-arm injuries.\n<\/p>\n
13.     P.W.3 Chandrika Prasad is said to be the eye-witness<\/p>\n
of the occurrence. His evidence is that the occurrence<\/p>\n
took place more than three years ago at about 4 P.M. in<\/p>\n
the evening. At that time, he was going south of the<\/p>\n
village       and   when    he    reached        near      the     Dalan    of    Kansi<\/p>\n
Zamadar       he    saw    Dharamjay           Mukhia       coming     from       south<\/p>\n
followed by six persons, namely, Surjan Mahto, Lal Muni<\/p>\n
Chauhan alias Chunnu Chauhan, Bablu Mahto, Binda Mahto,<\/p>\n
Gonu Mahto and Karu Mahto. They were armed with rifles,<\/p>\n
guns and pistols. Pramod, Ram Swarath (both deceased) and<\/p>\n
Harif     tried     to     run     away    from        that       place    whereupon<\/p>\n
Dharamjay Mukhiya asked them to sit down but Pramod, Ram<\/p>\n
Swarath       and   Harif     ran    towards          Dalan       where    Dharamjay<\/p>\n
Mukhiya exhorted all other accused persons to open fire<\/p>\n
upon which Bablu Mahto fired shot with his rifle which<\/p>\n
hit Pramod on his chest, Gonu Mhato fired shot with his<\/p>\n
rifle    which      hit    Pramod    on        his   back     above       the    waist.<\/p>\n
Surjan    Mahto      opened       fire    with       his    gun    which     hit   Ram<\/p>\n
Swarath on his head. Lalmuni Chauhan opened fire with his<\/p>\n
gun which hit Ram swarath on his abdomen. Binda Mahto<\/p>\n
fire shot with his rifle which hit Ram Swarath on his
\n                                         12<\/span><\/p>\n
back. Karu Mahto fired shot with his pistol at Harif but<\/p>\n
Harif remained unhurt. Pramod and Ram Swarath died at the<\/p>\n
spot. The motive of the occurrence was that Ram Swarath<\/p>\n
used to hire labourers to brick-kiln at Patna on contract<\/p>\n
basis. Appellant Dharamjay Mukhiya was demanding Rangdari<\/p>\n
tax from him but Ram Swarath refused to give Rangdari tax<\/p>\n
to him and due to that, this occurrence had taken place.<\/p>\n
In    cross-examination           at    paragraph       50   he    has    stated<\/p>\n
Dharamjay Mukhiya had not demanded any extortion money<\/p>\n
from deceased Ram Swarath in his presence. He has also<\/p>\n
admitted that Dharamjay Mahto is continuing as Mukhiya<\/p>\n
for the last 15 years and prior to that, Madan Mohan<\/p>\n
Singh was the Mukhiya of village Rahima.\n<\/p>\n
14.      P.W.4 Dulari Devi alias Sundari Devi is the mother<\/p>\n
of    the    informant      and   deceased       Ram    Swarath     and   grand-<\/p>\n
mother      of     Pramod   Chauhan.       She    has    been     tendered     for<\/p>\n
cross-examination. In cross-examination, no question was<\/p>\n
asked       from    her   on    the    point     of    occurrence.       So,   her<\/p>\n
evidence is not relevant in this case.\n<\/p>\n
15.     P.W.5 Harif Nonia is the informant of this case. His<\/p>\n
evidence is that the occurrence took place about three<\/p>\n
years and 17-18 days back on a Tuesday at about 4 P.M. At<\/p>\n
that time he was at his Dalan. His brother Ram Swarath,<\/p>\n
father Kesho Chauhan, uncle Shiv Balak Chauhan, nephews<\/p>\n
Pramod Chauhan and Manoj Chauhan were also present there.<\/p>\n
He    saw     appellant        Dharamjay     Mukhiya     along     with    Bhonu<\/p>\n
Mahto, Bablu Mahto, Surjan Mahto, Lalmuni alias Chunnu<\/p>\n
Chauhan, Binda Mahto and Karu Mahto coming towards Dalan.
\n                                     13<\/span><\/p>\n
Bhonu Mahto, Bablu Mahto and Binda Mhato were armed with<\/p>\n
gun whereas Surjan Mahto and Lalmuni were armed with gun<\/p>\n
and Karu Mahto was armed with a pistol. They all came in<\/p>\n
front of his Dalan. Dharamjay Mukhiya asked Ram Swarath<\/p>\n
and Pramod to sit at the same place otherwise he would<\/p>\n
shoot them. Out of fear, Ram Swarath and Pramod started<\/p>\n
fleeing   away    towards    Dalan       and   then      Dharmajay   Mahto<\/p>\n
ordered to open fire whereupon Bablu fired shot form his<\/p>\n
rifle which hit Pramod on his chest, Bhonu Mahto fired<\/p>\n
shot from his rifle which hit on his back above waist,<\/p>\n
Surajan   Mahto   fired     shot    from   his     gun    which    hit   Ram<\/p>\n
Swarath on his head, Lalmuni Chauhan fired shot from his<\/p>\n
gun which hit Ram Swarath on his abdomen, Binda also<\/p>\n
fired shot from his rifle which hit Ram Swarath on his<\/p>\n
back and Karu Mahto fired shot from his pistol at him but<\/p>\n
he remained unhurt. Being injured Ram Swarath and Pramod<\/p>\n
fell down and died on the spot and then all the accused<\/p>\n
persons   fled    away.   He    has      further    deposed       that   Ram<\/p>\n
Swarath and Pramod used to send labourers to the brick-<\/p>\n
kiln in Patna. Dharamjay Mukhiya used to demand Rs.10\/-<\/p>\n
per labourer as extortion money from them but Ram Swarath<\/p>\n
told that he was a poor man and was              not in a position to<\/p>\n
pay money whereupon Mukhiya Jee had threatened him to<\/p>\n
teach lesson. He has further deposed that the police had<\/p>\n
recorded his statement at his house at about 10 O’ clock<\/p>\n
in the night and on the said statement, he had put his<\/p>\n
signature (Ext.4) which was also signed by witnesses,<\/p>\n
namely,   Shiv    Balak   and      Kailash     Prasad     Chauhan    whose
\n                                          14<\/span><\/p>\n
signatures         have    been     marked    as    Exts.     4\/1    and       4\/2,<\/p>\n
respectively.\n<\/p>\n
       At paragraph 16 of his evidence, P.W.5 has stated<\/p>\n
that    he   had     gone    to   Barh    P.S.     with    Baleshwar       Paswan<\/p>\n
(C.W.3)      and    returned      from    that     place     along   with       the<\/p>\n
police.      The    police    had    made     enquiry      from    him    at   the<\/p>\n
police station. He has further deposed that he had not<\/p>\n
stated the name of the accused persons to S.I. of Police<\/p>\n
at     Barh P. S. rather at his house he disclosed the names<\/p>\n
of the accused persons. He has further deposed that he<\/p>\n
along with Baleshwar stayed at the police station for<\/p>\n
about one to one and half hours and although S.I. of<\/p>\n
Police    and      the    constables     were      present    at    the    police<\/p>\n
station but they did not obtain his signature or his<\/p>\n
thumb impression on any paper. At paragraph 17, P.W.5 has<\/p>\n
deposed that after coming to the place of occurrence,<\/p>\n
S.I. of Police firstly prepared inquest reports of the<\/p>\n
dead bodies in presence of Shiv Balak, Kailash and Kesho<\/p>\n
Chauhan and then recorded his statement. At paragraph 23<\/p>\n
he has deposed that besides the members of his family,<\/p>\n
many people of the village from far off and neighbouring<\/p>\n
area had watched the occurrence. At paragraph 30, P.W.5<\/p>\n
has deposed that the accused persons had fired at lest 8<\/p>\n
to 9 shots and even at the time of running away, they had<\/p>\n
fired 2 to 3 shots. At paragraph 35, he has deposed that<\/p>\n
the blood in huge quantity had fallen at the place of<\/p>\n
occurrence which was in the area of 2′ to 3′ on the land<\/p>\n
where Pramod had fallen. He has further deposed that the
\n                                   15<\/span><\/p>\n
blood was also spread in an area of 2′ to 3′ on the land<\/p>\n
where Ram Swarath had fallen. At paragraph 49, P.W.5 has<\/p>\n
stated that when he had gone to Barh Police station with<\/p>\n
the Chowkidar four more persons had also accompanied him<\/p>\n
at that time. He was crying there and sitting near the<\/p>\n
police   Station   and   did    not     know     whether       any   person<\/p>\n
informed the police about the occurrence but he could not<\/p>\n
tell the names of the accused persons because he was<\/p>\n
shocked. At paragraph 51, P.W.5 has deposed that after<\/p>\n
arrival of the police he and his father discussed about<\/p>\n
the occurrence and names of the accused persons to be<\/p>\n
given to the police. At paragraph 53 he has denied the<\/p>\n
suggestion that his fardbeyan was changed by the police.<\/p>\n
At paragraph 63, he has stated that Dharamjay Mukhiya had<\/p>\n
never demanded any extortion money in his presence.<\/p>\n
16.   Chhathu Prasad is P.W.6. He is a co-villager of the<\/p>\n
informant. His evidence is that the occurrence took place<\/p>\n
on 12.7.1994 and on hearing sound of firing he went to<\/p>\n
Dalan of Kesho Chauhan at about 4 P.M. and saw the dead<\/p>\n
bodies of Pramod and Ram Swarath lying there with mark of<\/p>\n
bullet   injury.   The   police        arrived    at     the    place     of<\/p>\n
occurrence at about 6 A.M. and prepared inquest reports<\/p>\n
of both the dead bodies on which he put his signatures<\/p>\n
(Exts. 4\/2 and 4\/3). He has also proved the signatures of<\/p>\n
witness Sahdeo Chauhan on the two inquest reports which<\/p>\n
have been marked as Exts.4\/4 and 4\/5. At paragraph 24 of<\/p>\n
his   cross-examination,       this    witness     has    deposed       that<\/p>\n
there is interpolation on Ext.3 and there is overwriting
\n                                          16<\/span><\/p>\n
on the date and after overwriting date “12\/7” has been<\/p>\n
written as “13\/7”.\n<\/p>\n
17.   P.W.7       Rajendra      Prasad        Yadav      is     again       a     formal<\/p>\n
witness. He has proved the fardbeyan recorded by S. I.<\/p>\n
Sri Peyush Kant which has been marked Ext.5. He has also<\/p>\n
proved the signature of Sri Bigulgari, Officer Incharge<\/p>\n
on the first information report. Being formal witness,<\/p>\n
the evidence of P.W.7 is not material in this case.<\/p>\n
18.        Now    turn    comes     to    the       evidence         of     the    court<\/p>\n
witness      as    I     have   already         stated         above      that      four<\/p>\n
witnesses        were    examined    as       court      witnesses          under   the<\/p>\n
provisions        of     Section    311       of    the       Code     of       Criminal<\/p>\n
Procedure. The first witness is Bigulgari, Inspector of<\/p>\n
Police     Barh     Police      Station.       He       is    the    Investigating<\/p>\n
Officer of this case. His evidence is that on 13.7.1994<\/p>\n
he was posted as Officer Incharge at Barh P.S. On that<\/p>\n
day   he    received      the   fardbeyan          of    the    informant          Harif<\/p>\n
Nonia of village Shaidpur recorded by S.I. Peyush Kant on<\/p>\n
the basis of which he registered this case and took up<\/p>\n
investigation. During investigation he visited the place<\/p>\n
of occurrence which is Dalan of the informant and the<\/p>\n
deceased     persons       situated       at       village      Shaidpur          facing<\/p>\n
east. There are two rooms inside the verandah of Dalan.<\/p>\n
On the same verandah, he found the dead body of Ram<\/p>\n
Swarath Chauhan lying towards south and the dead body of<\/p>\n
Pramod lying towards north which was lying in a pool of<\/p>\n
blood. He found a cot kept in the courtyard in front of<\/p>\n
verandah. He also found the blood fallen on the ground
\n                                      17<\/span><\/p>\n
below the cot and on the cot. At paragraph 8, he has<\/p>\n
deposed that there is no mention about the deputation of<\/p>\n
S.I. Peyush Kant in the case diary in connection with<\/p>\n
this case. At paragraph 17, he has deposed that from the<\/p>\n
case diary it would not be clear as to when S.I. Peyush<\/p>\n
Kant had left for place of occurrence. At paragraph 21,<\/p>\n
he has deposed that Peyush Kant had prepared the inquest<\/p>\n
reports. At paragraph 34, he has deposed that he had not<\/p>\n
collected     the    evidence     with    regard    to   sending     of   the<\/p>\n
labourers to the brick-kiln by the deceased. At paragraph<\/p>\n
43, he has denied that he changed the first fardbeyan.<\/p>\n
19.     C.W.2 is Shiv Balak Nonia. His evidence is that on<\/p>\n
12.7.1994 at about 4 P.M. he was at the Dalan of Ram<\/p>\n
Swarath.      His   brother      Kesho    Nonia,   Ram     Swarath    Nonia,<\/p>\n
Pramod Nonia, Harif Nonia, Manoj Nonia were also there.<\/p>\n
In the meantime, Dharamjay Mukhiya, Bablu Mahto, Bhonu<\/p>\n
Mahto, Binda Mahto, Surajan Mahto, Lalmuni Chauhan alias<\/p>\n
Chunnu Chauhan and Karu Mahto came there. Bablu Mahto,<\/p>\n
Bhonu   Mahto       and   Binda   Mahto    were    armed    with     rifles,<\/p>\n
Surajan Mahto and Lalmuni Chauhan were armed with gun,<\/p>\n
Karu Mahto was armed with pistol and Dharamjay Mukhiya<\/p>\n
was unarmed. All of them came to Dalan. Dharamjay Mukhiya<\/p>\n
asked   Ram    Swarath     and    Promod    to    remain    sitting    there<\/p>\n
whereupon Ram Swarath and Pramod stood up and tried to<\/p>\n
flee away then Dharamjay Mukhiya shouted to kill him.<\/p>\n
Then all the above named accused persons entered into the<\/p>\n
verandah. Bablu Mahto fired with his rifle at Pramod on<\/p>\n
his chest, Bhonu Mahto fired with his rifle at Pramod on
\n                                            18<\/span><\/p>\n
his back just above the waist, Surjan Mahto fired with<\/p>\n
his gun at Ram Swarath on his head, Lalmuni Chauhan fired<\/p>\n
with his gun at Ram Swarath on his abdomen, Binda fired<\/p>\n
with his rifle at Ram Swarath on his back above the<\/p>\n
waist. Ram Swarath and Pramod fell down. Karu Mahto fired<\/p>\n
with his pistol at Harif but missed. Pramod died at the<\/p>\n
spot and later on, Ram Swarath also died. At paragraph 7,<\/p>\n
he    has    deposed          that    deceased    persons      used    to   supply<\/p>\n
labourers to the brick-kiln. Dharamjay Mukhiya used to<\/p>\n
demand      Rs.10\/-       per        labourer    as   extortion       money.      At<\/p>\n
paragraph 15 he has deposed that he had gone to inform<\/p>\n
Baleshwar Chowkidar                   and he came to know that Baleshwar<\/p>\n
Paswan had gone to Police Station to inform the police<\/p>\n
about the occurrence. At paragraph 18, he has deposed<\/p>\n
that he had gone to Barh Police Station with the dead<\/p>\n
body. About 40 to 50 people of the village had also gone<\/p>\n
and    he    had     stayed      at     Barh    for    the    whole    night     and<\/p>\n
returned home next day after cremating the dead body.<\/p>\n
20.     C.W.3       is    Baleshwar        Paswan,      Chowkidar       9\/3.     His<\/p>\n
evidence is that about 3 to 4 years ago at about 3 P.M.<\/p>\n
Harif Nonia (informant) had come running to his village.<\/p>\n
He (Harif Nonia) told him that murder has been committed<\/p>\n
at his house and asked him to come to the Police Station.<\/p>\n
Harif       Nonia    did       not     disclose       who    had   killed      whom,<\/p>\n
although he had made enquiry from Harif Nonia with regard<\/p>\n
to    the    names       of    the     assailants      and   deceased.      He   has<\/p>\n
further deposed that when he reached village Shaidpur at<\/p>\n
the house of Harif Nonia he saw two dead bodies lying by
\n                                    19<\/span><\/p>\n
the side of ditch (not at verandah) which was in front of<\/p>\n
the house of Harif Nonia at a distance 5 to 6 Bans.                 The<\/p>\n
dead bodies were of Ram Swarath and his son. He has<\/p>\n
further deposed that he went to Barh Police Station with<\/p>\n
Harif Nonia and firstly, he along with Harif Nonia went<\/p>\n
to the Dy.S.P. Dy.S.P. directed him to go to the police<\/p>\n
station. And then both came to the Barh Police Station.<\/p>\n
The S.I. of Police interrogated Harif Nonia and then both<\/p>\n
the persons returned to village Shaidpur with S.I. Peyush<\/p>\n
Kant. At paragraph 11 C.W.3 has deposed that he had made<\/p>\n
enquiry from Harif Nonia as to who were the assailants.<\/p>\n
He did not disclose the name of any person. He again<\/p>\n
asked the names of the assailants but Harif Nonia did not<\/p>\n
disclose the name of any accused. At paragraph 17 C.W.3<\/p>\n
has deposed that Harif Nonia had not stated the name of<\/p>\n
any accused at the police station.\n<\/p>\n
21.       C.W.4   is    Peyush   Kant,   Sub-Inspector     of   Police,<\/p>\n
Barh Police Station. His evidence is that he had recorded<\/p>\n
the fardbeyan of the informant (Ext.5) and had prepared<\/p>\n
the inquest reports of the two dead bodies which have<\/p>\n
been marked as Exts. 3 and 3\/1. He has further deposed<\/p>\n
that   he   got   information     about    the   occurrence     through<\/p>\n
rumour that firing was going on in village Shaidpur and<\/p>\n
then he rushed to village Saidpur.               At paragraph 10 he<\/p>\n
has admitted that there is overwriting in column 8 of<\/p>\n
Exhibit     3   below   the   signatures    of   Chhathu   Prasad   and<\/p>\n
Sahdeo Prasad and there are over-writings in the date<\/p>\n
mentioned at columns 3, 8 and            9 of Ext.3\/1. At paragraph
\n                                    20<\/span><\/p>\n
17 he has denied the suggestion that he had changed the<\/p>\n
original fardebyan of this case.\n<\/p>\n
22.    It appears from the record that on the direction of<\/p>\n
the High Court, an enquiry was conducted with regard to<\/p>\n
the genuineness of the fardbeyan and during enquiry, this<\/p>\n
witness admitted that it is a fact that fardbeyan as well<\/p>\n
as inquest reports are not in his handwritings. Thus, it<\/p>\n
is established beyond doubt that the statement of the<\/p>\n
informant    that      C.W.4    Peyush     Kant   had     recorded    his<\/p>\n
fardbeyan is totally false. Likewise, the statement of<\/p>\n
C.W.4 Peyush Kant that he had prepared inquest reports of<\/p>\n
dead bodies is also false.\n<\/p>\n
23.    The contention of the defence counsel was that the<\/p>\n
first information report which was in the handwriting of<\/p>\n
Peyush Kant was changed and substituted with the present<\/p>\n
fardbeyan    as   in    the    first    fardbeyan   no    name   of   any<\/p>\n
accused was mentioned. His submission was that besides<\/p>\n
the admission of C.W.4 Peyush Kant that the fardbeyan and<\/p>\n
inquest reports were not in his handwritings and he has<\/p>\n
wrongly deposed that the fardbeyn and inquest reports<\/p>\n
were   in   his   handwriting,     there    are   other    evidence   on<\/p>\n
record to believe that the original fardbeyan had been<\/p>\n
changed. In this regard first of all he has referred the<\/p>\n
evidence of C.W.3 Baleshwar Paswan Chowkidar No.9\/3 who<\/p>\n
has deposed that he had accompanied the informant to Barh<\/p>\n
P.S. and at Barh P.S., S.I. of Police had interrogated<\/p>\n
Harif Nonia but Harif Nonia had not stated the names of<\/p>\n
the accused persons at the time of his statement at the
\n                                   21<\/span><\/p>\n
police Station (vide paragraph 17). He submitted that<\/p>\n
this statement of C.W.3 further finds corroboration from<\/p>\n
the   evidence   of   P.W.5     Harif    Nonia(informant)          who      has<\/p>\n
deposed at paragraph 16 that he had gone to Barh P.S.<\/p>\n
with Baleshwar Paswan (C.W.3) and the police had enquired<\/p>\n
him at the police station but he had not stated the names<\/p>\n
of the accused persons to S.I. of Police at Barh Police<\/p>\n
Station.    He   again    referred       paragraph         49   in        which<\/p>\n
informant (P.W.5) has stated that after the occurrence<\/p>\n
when he had gone to Barh Police Station with Chowkidar<\/p>\n
four more persons had accompanied him at that time, when<\/p>\n
the police asked him he simply said that the murder had<\/p>\n
been committed but he could not tell the names of the<\/p>\n
accused    persons    because    he     was     shocked.    The      learned<\/p>\n
defence counsel again referred paragraph 18 of C.W.2 Shiv<\/p>\n
Balak Nonia in which he has stated that he had gone to<\/p>\n
Barh Police Station with dead body, about 40 to 50 people<\/p>\n
of the village had also gone but he had not talked with<\/p>\n
anyone at Barh Police Station and after the post mortem<\/p>\n
he returned to the village on the next day. I have gone<\/p>\n
though the above referred statements of the witnesses and<\/p>\n
I am in full agreement with the view of the learned<\/p>\n
defence    counsel     that     the     above     statements         of     the<\/p>\n
witnesses establish beyond doubt that for the first time<\/p>\n
when the informant along with C.W.2 Shiv Balak Nonia and<\/p>\n
C.W.3   Baleshwar     Paswan    Chowkidar       went   to   Barh      Police<\/p>\n
station, neither he nor any other persons disclosed the<\/p>\n
names of any accused which establishes beyond doubt that
\n                                            22<\/span><\/p>\n
the fardbeyan of this case is ante-dated and probably has<\/p>\n
been changed in view of the admission of C.W.4 Peyush<\/p>\n
Kant that the same is not in his handwriting. The fact<\/p>\n
that the dead bodies were also brought to the police<\/p>\n
Station       vide    paragraph       18        of    C.W.3     establishes       that<\/p>\n
before    recording          the   fardebyan           the    dead    bodies      were<\/p>\n
removed       from     the    place     of           occurrence      and   so,     the<\/p>\n
preparation of inquest reports at the place of occurrence<\/p>\n
by C.W.4 Peyush Kant is also doubtful and this doubt is<\/p>\n
confirmed by the admission of C.W.3 in the enquiry that<\/p>\n
the inquest reports are not in his handwritings. Thus,<\/p>\n
the first contention of the learned defence counsel that<\/p>\n
the    fardebyan       is     ante-dated         and     perhaps      substituted,<\/p>\n
becomes established.\n<\/p>\n
24.      The next contention of the learned defence counsel<\/p>\n
was that neither the informant nor any other witnesses<\/p>\n
are actually the eye-witnesses of the occurrence and that<\/p>\n
they   had     not     seen    the    actual          occurrence     and   in     this<\/p>\n
connection he has placed reliance upon the evidence of<\/p>\n
the doctor. The evidence of the doctor, who is P.W.2,<\/p>\n
shows that he had found only one fire-arm injury on the<\/p>\n
person of each of the deceased. According to him, one<\/p>\n
injury was wound of entry and another injury was wound of<\/p>\n
exit    but    according        to    the       evidence        of   P.W.3,      P.W.5<\/p>\n
(informant)          and    C.W.2,    firstly           Bablu     Mahto    shot     at<\/p>\n
deceased Pramod Chauhan on his chest, then Gonu shot at<\/p>\n
him with rifle causing injury on his back and chest.<\/p>\n
Likewise, according to the evidence of above said three
\n                                                 23<\/span><\/p>\n
witnesses,         Ram    Swarath          was       shot       at    by     Surjan       Mahto,<\/p>\n
Lalmuni Chauhan and Binda Mahto. Thus, the presence of<\/p>\n
only    one    fire-arm             injury           on     each       of        the   deceased<\/p>\n
establishes beyond doubt that the prosecution case that<\/p>\n
the deceased Pramod had been shot at by two persons and<\/p>\n
Ram Swarath had been shot at by three persons is false.<\/p>\n
Under such circumstance, I have no hesitation to hold<\/p>\n
that    the    manner          of    occurrence,                as    disclosed          in    the<\/p>\n
fardebyan      and        in        the     evidence             of        the     prosecution<\/p>\n
witnesses and in the evidence of the court witnesses,<\/p>\n
does not stand proved rather it stands falsified by the<\/p>\n
evidence of the doctor.\n<\/p>\n
25.    The next contention of the learned defence counsel<\/p>\n
was that the prosecution has also failed to establish the<\/p>\n
place of occurrence of this case. In this regard, he has<\/p>\n
referred      the        evidence          of    C.W        3     Chowkidar            Baleshwar<\/p>\n
Paswan, who has deposed that he had seen the dead bodies<\/p>\n
in the ditch in front of the verandah of the informant<\/p>\n
and    not    at    his    verandah             when       he     for      the     first      time<\/p>\n
visited      the    place       of        occurrence.            The       learned      defence<\/p>\n
counsel submitted that the statement of C.W.3 establishes<\/p>\n
that    verandah          was       not     the           place       of     occurrence         as<\/p>\n
disclosed in the fardbeyan and in the evidence of the<\/p>\n
prosecution         witness.          I     am        of        the     view       that       this<\/p>\n
contention         of    the    leaned           defence          counsel          also    finds<\/p>\n
support from the evidence of C.W.1 Bigulgari who is the<\/p>\n
Investigating Officer of this case who has deposed at<\/p>\n
paragraph 2 that he had found the dead bodies of Ram
\n                                       24<\/span><\/p>\n
Swarath and Pramod lying on the verandah but he had found<\/p>\n
the blood lying on the ground below the cot which was<\/p>\n
kept in front of verandah. The evidence of C.W.1 does not<\/p>\n
disclose that the blood in huge quantity was found lying<\/p>\n
on the verandah where the dead bodies were found lying.<\/p>\n
This goes to show that the verandah is not the actual<\/p>\n
place of occurrence. The presence of blood at the cot<\/p>\n
kept    in    front    of    verandah      and     below   the   said    cot,<\/p>\n
establishes that both the dead bodies were taken out from<\/p>\n
some other places.           The evidence of the Chowkidar that he<\/p>\n
had found the dead bodies in ditch shows that there was<\/p>\n
every possibility that the dead bodies were brought to<\/p>\n
the    verandah   from       the   said    place    and    non-presence    of<\/p>\n
blood at the verandah and non-seizure of the blood from<\/p>\n
the said verandah establishes that the verandah is not<\/p>\n
the actual place of occurrence. Moreover, the evidence of<\/p>\n
C.W.1 as well as C.W.4 Peyush Kant does not show that<\/p>\n
they had seen any mark of violence caused by fire-arm at<\/p>\n
the wall or surface of the verandah nor the evidence<\/p>\n
shows that they had recovered any bullet or pellet from<\/p>\n
the    said   place.      This     fact    also    establishes    that    the<\/p>\n
verandah is not the actual place of occurrence. Under the<\/p>\n
circumstances,        I     hold   that    the     prosecution    has    also<\/p>\n
failed to prove the place of occurrence of this case.<\/p>\n
26.    As regards the motive, I find no supporting evidence<\/p>\n
that the appellant Dharamjay Mukhiya had ever demanded<\/p>\n
any Rangdari tax from the deceased in presence of any<\/p>\n
witnesses and so, the motive does not stand proved.
\n                                       25<\/span><\/p>\n
27.     On the basis of the evidence discussed above, I am<\/p>\n
of the view that the prosecution has miserably failed to<\/p>\n
prove the charges levelled against the appellants and as<\/p>\n
such,    the     conviction     of   the    appellants         under   Section<\/p>\n
302\/34 of the I.P.C. and under Section 27 of the Arms Act<\/p>\n
cannot be upheld. Consequently, the death sentence passed<\/p>\n
against appellant Dharamjay Prasad Mukhia for the offence<\/p>\n
of murder under Section 302\/34 of the I.P.C. and the<\/p>\n
sentence of rigorous imprisonment for life passed against<\/p>\n
appellants, Karu Mahto and Binda Mahto as well as R.I.<\/p>\n
for seven years awarded to them under Section 27 of the<\/p>\n
Arms Act cannot he upheld.\n<\/p>\n
28.        In the result, Death Reference No.5 of 2004 is<\/p>\n
answered in the negative and separate criminal appeals<\/p>\n
filed by three appellants bearing Criminal Appeal No.284<\/p>\n
of    2004(DB),     Criminal      Appeal      No.286     of    2004(DB)      and<\/p>\n
Criminal       Appeal      No.335     of    2004    are        allowed.     The<\/p>\n
conviction and death sentence passed against Dharamjay<\/p>\n
Prasad    @    Dharamjay     Mahto    under    Section        302\/34   of    the<\/p>\n
Indian    Penal     Code    are     set    aside.   The       conviction     and<\/p>\n
sentence passed against the appellants Karu Mahto and<\/p>\n
Binda Mahto under Section 302\/34 of the I.P.C. as well as<\/p>\n
under Section 27 of the Arms Act are also set aside.<\/p>\n
Accordingly, all the three appellants are acquitted of<\/p>\n
their respective charges framed under Section 302\/34 of<\/p>\n
the     I.P.C.    and   under       Section    27   of    the     Arms      Act.<\/p>\n
Appellants, namely, Karu Mahto and Binda Mahto are on<\/p>\n
bail, as such they are discharged from the liability of
\n                                         26<\/span><\/p>\n
            their bail bonds. Appellant Dharamjay Mahto @ Dharamjay<\/p>\n
            Mahto is in jail, he is directed to be set at liberty at<\/p>\n
            once, if not wanted in any other case.\n<\/p>\n<\/p>\n
                                     (Syed Md. Mahfooz Alam, J.)<\/p>\n
Mridula Mishra,J. I agree.\n<\/p>\n<\/p>\n
                                         (Mridula Mishra, J.)<\/p>\n
              Patna High Court, Patna
\n              The 28th November, 2008
\n              A.F.R. (B.T.)\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court State Of Bihar vs Dharamjay Prasad 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-210664","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nState Of Bihar vs Dharamjay Prasad on 28 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dharamjay-prasad-on-28-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Bihar vs Dharamjay Prasad on 28 November, 2008 - 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