Anil Kumar Mahto vs The State Of Bihar
2023 Latest Caselaw 1205 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.75 of 2022
       Arising Out of PS. Case No.-385 Year-2019 Thana- SIWAN MUFFASIL District- Siwan
     ======================================================

1. Anil Kumar Mahto S/o Ramdas Mahto R/o Village- Bindusar Hamid, P.S. Siwan Muffasil, Distt.- Siwan

2. Santosh Kumar Mahto S/o Ramdas Mahto R/o Village- Bindusar Hamid, P.S. Siwan Muffasil, Distt.- Siwan

3. Samshad Mian S/o Aziz Mian R/O Village- Bindusar Hamid, P.S. Siwan Muffasil, Distt.- Siwan

4. Raju Srivastava S/O Surendra Kumar Srivastava R/O Village- Bindusar Hamid, P.S. Siwan Muffasil, Distt.- Siwan

5. Jitendra Yadav S/O Sabaru Yadav R/O Village- Barhan Bazar, P.S.- Siwan Muffasil, Distt.- Siwan.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr.Gajendra Kumar Singh, Advocate For the Respondent/s : Mr.Manish Kumar No2, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)

Date : 28.03.2023

At the outset, it is important to mention herewith that

present appeal is limited with above named five (5) out six (6)

convicts, except convict, Arbind Kumar Mahto S/o Ramavtar

Mahto. It is to mention further that present appeal taken up for

final hearing, as requested by learned counsel appearing for

above named appellants/convicts, while arguing prayer of bail as

raised through I.A. No. 01 of 2022.

Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

2. The present memo of appeal preferred challenging the

judgment of conviction dated 23.12.2021 and the order of

sentence dated 06.01.2023 passed by Shri Ramayan Ram, III rd

Additional Sessions Judge, Siwan as passed in Session Trial No.

52 of 2020, arising out of Siwan Muffasil P.S. Case No. 385 of

2019 lodged for offences alleged under Section 302, 120(B)/34

of the Indian Penal Code (I.P.C.), where the aforesaid

appellants/convicts have been convicted under Section 148 of

the I.P.C and sentenced to undergo rigorous imprisonment (R.I)

for 3 years each and they have been also convicted under

Section 302 read with 149 of the Indian Penal Code (I.P.C.) and

sentenced to undergo rigorous imprisonment for life and fine of

Rs. 25,000/- each. In default of payment of fine, all

appellants/convicts shall further ordered to undergo rigorous

imprisonment (R.I) for six months each, where all the sentences

to run concurrently, with an adjustment of already undergone

period in jail.

3. The case of prosecution, as set out by the informant,

namely, Salma Khatun (PW-3) through her written complaint

dated 16.10.2019, addressing to S.H.O, Muffasil, Siwan, is that

on 13.10.2019 at about 6:00 p.m., while she was cooking at her

home, accused persons, namely, Anil Kumar Mahto aged about Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

21 years, Santosh Kumar Mahto aged about 20 years both are

son of Ramdas Mahto, Arbind Kumar Mahto aged about 22

years S/o Ramavtar Mahto, Raju Kumar Srivastava aged about

23 years S/o Surendar Lal Srivastava & Samsad Miyan aged

about 28 years S/o Aziz Miyan, all R/o Village- Bindusar Hamid

and Jitendra Yadav S/o Savru Yadav R/o village- Barhan Gopal

Bazar, all of P.S.-Muffasil Siwan, District- Siwan along with 5

to 6 unknown persons came to her home and asked her son to be

accompanied with them for a place near to "Murghatia" and

taken him with them. It is further alleged thereof that after some

time her elder son, namely, Rabbudin came to home and asked

informant regarding where about of Israil (deceased),

whereupon informant replied him that above named co-accused

persons called him to accompanied with them. Learning from

her son, Rabbudin, that the above named accused persons are

not good pesons, informant alongwith her son, Rabbudin, started

to search her son and found that above named all six (6) accused

persons were found assaulting her son at "Bindusar Hamid

Murghatia" (place of occurrence) by means of lathi, danda and

sword, consequent upon her son died on the place of occurrence

itslef. It is further stated thereof that several persons of village

arrived there after the occurrence, who also saw the occurrence. Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

The reason to lodge delayed FIR was explained as informant

was busy to mourn the sad demise of her son.

4. On the basis of above mentioned written complaint/first

information, Siwan, Muffassil, P.S. Case No. 385 of 2019 dated

06.10.2019 was registered for offence alleged under Section

302/120(B)/34 of the Indian Penal Code against above named

accused persons.

5. After investigation, the chargesheet against accused,

namely, Arbind Kumar Mahto, was submitted on 10.02.2020

vide Charge-sheet No. 8 of 2020, whereas against

appellants/convicts, namely, Anil Kumar Mahto, Santosh Mahto,

Raju Kumar Srivastava, Samsad Miyan and Jitendra Yadav

supplementary chargesheet was submitted after complition of

investigation vide Chargesheet No. 28 of 2021 on 04.02.2021.

Charge against above named six (6) accused persons including

above named Five (5) appellants/convicts were framed on

02.03.2021 by the learned Trial Court, where all

appellants/convicts plead not guilty, consequent upon trial was

started, which ended with conviction of above named

appellants/convicts through Sessions Trial No. 52 of 2020 dated

13.12.2021, which is the impugned judgment for the purpose of

the present appeal.

Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

6. Hence, the present appeal;

7. To establish its case, prosecution altogether examined

eight (8) witnesses before learned Trial Court which is as PW-1

Rabbudin, PW-2 Sahabuddin Miyan, PW-3 Salma Khatun

(informant/mother of deceased), PW-4 Dr. Ahmad Ali, PW-5

Dr. Vijay Kumar, PW-6 Jai Shree Prasad Singh (I.O. of the

case), PW-7 Pramod Das ( I.O. of the case) and PW-8

Parashuram Singh Gond (I.O. of the case).

8. The prosecution, during the course of trial, relied upon

the following exhibits:

Ext.1 - Signature of Dr. Ahmad Ali (PW-4) on post-

mortem report.

Ext.1/1 - Signature of Dr. Vijay Kumar (PW-5) on

post-mortem.

Ext.2 - Handwriting and signature of Ram Bichar

Rai, In-charge of Police Station.

Ext.2/1 - Signature of station In-charge, Ram

Bichar Rai, on formal FIR.

Ext.3 - Signature of Md. Rabbudin (PW-1) upon

carbon copy of inquest report of the deceased.

No witnesses and documents were produced during the

trial by appellants/convicts in defence.

Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

9. The statement of all appellants/convicts during the

trial was recorded under Section 313 of the Cr.P.C., where they

claimed to be an innocent person and denied their involvement

in the occurrence.

10. It appears from the deposition of PW-3, namely,

Salma Khatun, who is mother of the deceased and informant of

the present case that she became hostile before learned Trial

Court, and such failed to support the case of prosecution during

the trial. It appears from her examination in chief that on the

'Hulla' (collective alarm or shouting), she came to know about

the occurrence as her son, Israil Miyan, was murdered at

Bindusar Hamid, Murghatia (place of occurrence). It appears

that when she went to the place of occurrence on said hulla, she

found her son in injured condition lying over there having sharp

cut injury on his neck beside other bodily injuries. It is further

deposed that subsequently, she went to police station, where

police in-charge (Daroga) obtained her thumb impression on

blank paper. It is further deposed that police in-charge (Daroga)

never inquired her about the occurrence and also failed to

identify appellants/convicts before the learned Trial Court, she

was decalred hostile by the learned Trial Court, where on being

crossed by prosecution, she denied all suggestions as advanced Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

by prosecution. On cross examination on behalf of the

appellants/convicts, she deposed that the present deposition

what she made before the learned Trial Court is out of her own

sweet will without fear and favour. She further deposed that she

still unaware that how her son was murdered.

11. PW-1, namley, Rabbudin, who is the brother of the

deceased deposed before this Court that he knows nothing about

the occurrence and deposed that he put signature on the inquest

report of the deceased brother namely, Israil Miyan, prepared by

the police on 03.10.2022. He also failed to identify

appellants/convicts during trial before the Court. He was also

declared hostile, and on cross-examination by prosecution, he

denied all the suggestions as advanced by learned Additional

Public Prosecutor. On being crossed by appellants/convicts, he

was deposed that he is making his deposition before the Court,

out of his own free will without having any pressure. He also

deposed that he came to know after one day of the occurrence

regarding murder of his brother.

12. PW-2, namely, Sahabuddin Miyan, who is also one

of the brother of the deceased did not support the case of

prosecution during the trial by deposing that he never made

any statement before the police during the investigation. He Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

also failed to identify the accused persons during the trial. On

cross-examinations by prosecution, he denied all the

suggestions as advanced regarding the occurrence and

involvement, whereas on being crossed by the

appellant/convicts, he deposed his deposition before the Court

is out of his own sweet will and without having any pressure.

13. PW-4, namely, Dr. Ahmad Ali, who is one of the

member of the Medical Board constituted for post-mortem of

the deceased, Israil Miyan, who identified signature on post-

mortem report, which is exhibited as Mark-1.

14. PW-5, namely, Dr. Vijay Kumar, who is also one of

the member of the post-mortem team, who conducted post-

mortem upon the deceased, found following anti-

mortem/external injuries:

1. Rigor mortis present in all four limbs including

fingers and jaw.

(i) An oblique shaped incised wound at

right shoulder of size 1/2''x1/2''x7'' deep to

thoracic cavity (confirmed with prove insertion)

oozing of blood from wound present.

(ii) Incised wound over right clavicle

1''x1/4''x7'' deep to thoraic cavity with oozing of Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

blood present.

                                  (iii)       Incised wound oblique shaped at right

                         hand           2''     above       the   albow    of    size

1/2''x1/4''xMuscle deep present. Wound reddish.

(iv) Lacerated wound over left side of

occitital bone size 4''x1/4''x1/4'' wound reddish in

color.

2. Post-mortem/on-dissection:

(i) Chest-thoracic cavity filled with blood

and blood clots, right lung tear/ruptured, left

intact, both heart chamber empty.

(ii) Abdomen and pelves : liver, intestine,

spleen, both kidneys are intact, stomach

semi-digested food present, coffee coloured

blood mixed with food particles, bladder

empty, head intact.

15. PW-6, namely, Jai Shree Prasad Singh, PW-7,

namely, Pramod Das and PW-8, namely, Parashuram Singh

Gond are investigating officers of this case. PW-6 identified

the signature of station in-charge, Ram Bichar Rai, and

identified the handwriting and signature regarding endorsement

of FIR on the written complaint which is exhibited as Ext.2 and Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

2/1 before the learned Trial Court. He also identified signature

on inquest report of the deceased which is exhibited as Ext.3. It

was deposed before the learned Trial Court by him that he

visited place of occurrence and also obtained the supervision

note of his superior officers, during the course of investigation.

He also deposed to obtained the re-statement of informant and

also to record statement of witnesses, during the course of

investigation, and submitted charge-sheet against arrested

appellant/convict, Arbind Kumar, under Section 147, 148, 149,

302, 120(B) of the Indian Penal Code vide Charge-sheet No. 08

of 2020 dated 10.02.2020. On cross-examination, he deposed

before the learned Trial Court that he is not visited the place of

occurrence after receiving the information. He further deposed

that written complaint was received after 4 days of the

occurrence and not received any Informatory petition (Sanha

regarding deceased) during this period. He also deposed that he

di not find any blood stains on the place of occurrence, and

stated that on the date of occurrence though he was in police

station but place of occurrence was visited by station in-charge,

Ram Bichar Rai.

16. PW-7, namely, Pramod Das, who received the charge

of investigation after transfer of PW-6 and after completion of Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

investigation submitted charge-sheet against appellants/convicts,

namely, Anil Kumar Mahto, Raju Kumar Srivastava, Samsad

Miyan, Santosh Kumar Mahto and Jitendra Yadav vide Charge-

sheet No. 28 of 2021 dated 04.02.2021 under Section 302,

120(B)/34 of the Indian Penal Code. On cross-examination, he

deposed that he submitted chargesheet on the basis of fact

collected by his predecessor i.e. PW-6 and also under the

direction of his higher officials. He also deposed that no

independent opinion was given by him, while maintaining case

diary.

17. PW-8, namely, Parashuram, who is also one of the

investigating officer of this case and as per his deposition, it

appears that his investigation is limited to arrest of

appellant/convict, Jitendra Yadav. On cross-examination, he

deposed that no investigation was conducted by him.

18. It is sbmitted by learned counsel appearing on behalf

of appellants/convicts that PW-3, who is informant of this case

and claiming herself to be an eye witness of the occurrene

became hostile before the learned Trial Court, negating the

occurrence in totality. It is submitted that same is the position

of PW-1 and PW-2, who are brothers of the deceased and they

also became hostile. Learned counsel further submitted that Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

rest of the witnesses are official witnesses as doctors and

Investigating Officers of this case and on the basis of their

deposition, it can not be said that prosecution established its

case beyond reasonable doubt.

19. Learned APP, while arguing over the subject

submitted that injuries as explained by experts, who are doctors

and examined before learned Trial Court as PW-4 and PW-5

appears in corroboration with Ext.2, Ext. 2/1 and Ext. 3 proved

by PW-6 before the learned Trial Court. However, learned APP

conceded that material witnesses including informant as PW-1,

PW-2 and PW-3 did not support the case of prosecution during

the trial.

20. From the perusal of the aforesaid witnesses, it

appears that PW-4 and PW-5 are doctors and PW-6, PW-7 and

PW-8 are the police officials, who conducted investigation of

this case at different point of time. These witnesses are official

witnesses and their depositions are of limited bearing over the

trial of the case.

21. From the deposition of PW-3, namely, Salma Khatun,

who is informant and mother of the deceased, Israil Miyan, it

appears that she narrated a complete different story before the

learned Trial Court, stating that she is not the eye witness of the Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

occurrence and what information she received about the

occurrence is based upon hearsay input, as she gathered from

co-villagers. It appears from her deposition that when she

arrived at the place of occurrence, no accused persons were

there and only dead body of her son was lying, having several

injuries found upon neck and other parts of the body. She also

failed to identify the co-accused persons facing the trial before

the learned Trial Court. Accordingly, Informant (PW-3) was

declared hostile and same is the position with PW-1

Md. Rabbudin and PW-2 Sahabbudin who are none but the

brother of the deceased and they also turned hostile before the

Court.

22. It appears from the impugned judgment that having

all hostile witnesses in hand learned Trial Court convicted

appellants/convicts, merely, on the basis of deposition of PW-4

and PW-5 who are doctors and PW-6, PW-7 and PW-8 who are

investigating officers of the case.

23. Accordingly, the finding of conviction is not

convincing on its face, which is made by defying all the basic

principles of criminal jurisprudence.

24. Accordingly, the criminal appeal stands allowed.

25. Accordingly, the judgment of conviction dated Patna High Court CR. APP (DB) No.75 of 2022 dt.28-03-2023

23.12.2021 and order of sentence dated 06.01.2022 passed by

the learned Additional Sessions Judge-III, Siwan in Sessions

Trial No. 52 of 2020 arising out of Siwan Muffasil P.S. Case No.

385 of 2019 are set aside. The all above five (5) appellants are

acquitted of the charges level against them.

26. Appellants/convicts be set at liberty at once, if not

wanted in another case.

(A. M. Badar, J)

( Chandra Shekhar Jha, J) R.S.Sen/-

AFR/NAFR                N/A
CAV DATE                02/03/2023
Uploading Date          29.03.2022
Transmission Date       29.03.2022