Parwati Devi @ Paro Devi vs The State Of Bihar
2023 Latest Caselaw 5262 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.681 of 2018
  Arising Out of PS. Case No.-12 Year-2016 Thana- NOWKOTHI GARHPURA District-
                                       Begusarai
======================================================

Parwati Devi @ Paro Devi W/o Rameshwar Mahto resident of Village- Pir Nagar, P.S. Naokothi, District- Begusarai.

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

... ... Respondent/s ====================================================== with

CRIMINAL APPEAL (DB) No. 688 of 2018 Arising Out of PS. Case No.-12 Year-2016 Thana- NOWKOTHI GARHPURA District-

Begusarai ====================================================== Prince Kumar Mahto @ Prince Kumar S/o Rameshwar Mahto, R/o Vill. Pir Nagar, P.S.- Naokothi, District- Begusarai.

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

... ... Respondent/s ====================================================== with

CRIMINAL APPEAL (DB) No. 690 of 2018 Arising Out of PS. Case No.-12 Year-2016 Thana- NOWKOTHI GARHPURA District-

Begusarai ====================================================== Rameshwar Mahto S/o Late Shibu Mahto, resident of Village- Pir Nagar, P.S. Naokothi, District- Begusarai.

... ... Appellant/s Versus Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

The State Of Bihar

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

(In CRIMINAL APPEAL (DB) No. 681 of 2018) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Rajkumar Rajesh, Advocate For the State : Smt. Usha Kumari No-1, APP For the informant : Mr. Jai Prakash Singh, Advocate (In CRIMINAL APPEAL (DB) No. 688 of 2018) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Pushpendra Kumar Singh, Advocate For the State : Mr. Sadanand Paswan, APP For the informant : Mr. Jai Prakash Singh, Advocate (In CRIMINAL APPEAL (DB) No. 690 of 2018) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mrs. Kiran Kumari, Advocate Mr. Md. Imteyaz Ahmad, Advocate Mr. Ritwik Thakur, Advocate Mrs. Vaishnavi Singh, Advocate For the State : Mr. Sadanand Paswan, APP For the informant : Mr. Jai Prakash Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 11-10-2023

The present appeals have been filed by the concerned

appellants-convicts under Section 374(2) of the Code of Criminal

Procedure, 1973 (hereinafter referred as the 'Code') against

impugned judgment of conviction dated 06.04.2018 and order of

sentence dated 09.04.2018 passed by learned Special Judge

S.C./S.T. (POA) Act, Begusarai in connection with Naokothi P.S.

Case No. 12 of 2016, whereby the concerned Trial Court has

convicted the present appellants for the offences punishable under Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Sections 302/34, 120B of the I.P.C., under Section 27 of the Arms

Act and under Section 3(2)(v) of S.C./S.T. Prevention of Atrocities

Act.

2. The factual matrix of the present case is as under:-

"On 27.02.2016, at about 09:00 a.m. in the morning, Swati Kumari @ Krishna Kumari aged about 27 years, daughter of the informant Harilal Paswan (a teacher in an upgraded Middle School, Pir Nagar, Gamaharia) went to the school at 09:00 a.m. on 27.02.2016. The same day, at about 01:30 p.m., Swati Kumari was coming back to her home from the school. She was shot dead by the unknown miscreants who were boarded on a motorcycle in front of the house of Rampravesh Paswan. It is said that on hulla, the informant reached at the place of incident and found her daughter lying dead on the road with firearm injuries on her right ear, left jaw, left hand and on her rib cage. He asked the people of the locality regarding the occurrence but could not get any information regarding the unknown miscreants. It is further stated that Prince Kumar Mahto had kidnapped his daughter in the year 2012 for which Naokothi P.S. Case No. 30 of 2012 dated 15.05.2012 under Section 363, 366, 342, 323, 376/34 of the I.P.C. and S.C./S.T. Act was registered and in connection with the aforesaid case, Prince Kumar is in custody at Begusarai jail. It is also stated that earlier his daughter Swati Kumari was threatened by Prince Kumar Mahto not to depose in the Court, but ignoring the threat, his daughter had deposed in the Court and a few months ago, Prince Kumar Mahto was convicted and was sentenced for life by the concerned Court. The informant has claimed that Prince Kumar Mahto, who is in jail custody, has conspired and committed the murder of his daughter with the help of his unknown companion miscreants."

Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

3. On the basis of the aforesaid fardbeyan given by

Harilal Paswan, formal F.I.R. came to be registered as Naokothi

P.S. Case No.12 of 2016 for the offences under Sections 302/34,

120B of the I.P.C., under Section 27 of the Arms Act and under

Section 3(2)(v) of the S.C./S/T. Act. The Investigating Officer

carried out the investigation, and during the course of

investigation, the Investigating Officer had recorded the statement

of the witnesses, collected the documentary evidence and

thereafter, filed the charge-sheet against the appellants and two

other accused. The learned Magistrate committed the case to the

concerned Sessions Court under Section 209 of the Code as the

case was exclusively triable by the Court of Sessions.

3.1 Before the Sessions Court, the case was registered as

Naokothi P.S. Case No. 12 of 2016. Before the Trial Court, the

prosecution had examined six witnesses and also produced the

documentary evidence. Thereafter, statement of the accused under

Section 313 of the Code came to be recorded and after conclusion

of the evidence, the Trial Court passed the impugned judgment and

order by which the Trial Court convicted the present appellants, as

observed hereinabove, whereas two other accused namely,

Chandrashekhar Paswan @ Karnal Paswan and Shatruhan Paswan

have been acquitted by the Trial Court. Against the said order of Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

conviction, the three convicts have filed three separate appeals, as

observed hereinabove.

4. Heard Learned Advocate Mr. Ajay Kumar Thakur

assisted by Mr. Rajkumar Rajesh, Mr. Pushpendra Kumar Singh,

Mrs. Kiran Kumari and Mrs. Vaishnavi Singh for the appellants,

Mr. Jai Prakash Singh for the informant and Smt. Usha Kumari

No.1 and Mr. Sadanand Paswan, learned A.P.P's. for the

Respondent-State.

5. Learned Advocate Mr. Ajay Kumar Thakur for the

appellants would mainly submit that the present case is of

circumstantial evidence, and there is no eye-witness to the

occurrence in question. It is further submitted that the prosecution

has not completed the chain of circumstances from which it can be

conclusively proved that the present appellants and appellants only

have committed the alleged offence. It is further submitted that the

appellant Rameshwar Mahto and Paro Devi @ Parwati Devi are

parents of the accused Prince Kumar Mahto. It is submitted that

Prince Kumar Mahto was in custody when the occurrence in

question had taken place. He has been implicated only on the

ground that the deceased filed case against him for the offence

punishable under Section 376 of the I.P.C. in which the said

accused has been convicted by the Trial Court, as a result of Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

which, keeping grudge of the same, he has committed the present

offence. It is further submitted that there is no material available

with the Trial Court that the present appellants have hatched

conspiracy and thereafter, killed the deceased Swati Kumari, as

alleged by the prosecution. It is also submitted that Trial Court has

mainly placed reliance upon the C.D.R's collected by the

Investigating Officer with regard to the mobile phones of the

appellants/convicts and the deceased Swati Kumari. At this stage,

it is further submitted that the prosecution did not examine the

service provider with a view to prove that the said C.D.R. was

provided by the concerned mobile company to the Investigating

Officer and, in fact, Investigating Officer himself has issued

certificate under Section 65(B) of the Evidence Act by stating that

he is authorized to issue such certificate. However, the prosecution

has not produced any material to point out as to who had given the

said authorization to the Investigating Officer to issue such

certificate. Thus, it is submitted that even the said C.D.R's are also

not duly proved, though produced by the Investigating Officer

before the Trial Court. In spite of that, the Trial Court has mainly

placed reliance upon the said document.

6. Learned counsel for the appellants would thereafter

submit that even assuming that from the C.D.R's, collected by the Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Investigating Officer, it is established that accused Prince Kumar

Mahto called his parents from his mobile number on the date of

occurrence and prior to that, the said accused Prince Kumar Mahto

also called the deceased Swati Kumari on her mobile phone. Even

then, from the said fact only it cannot be proved beyond

reasonable doubt that from the jail, accused Prince Kumar Mahto

asked his parents to kill Swati Kumari, and in the morning of the

date of occurrence, the accused Prince Kumar Mahto threatened

Swati Kumari. There is no such evidence on record produced by

the prosecution. Thus, the Trial Court has passed an order of

conviction only on the basis of presumption. It is submitted that

though it is alleged by the prosecution that the location of the

mobile phones of the appellant Rameshwar Mahto and Parwati

Devi were found at the place of occurrence, it is revealed from the

deposition of the Investigating Officer that both the said appellants

are residing in the same area near the place of occurrence and,

therefore, naturally tower location of their mobile phones would be

the residence of the said appellants. Learned counsel, therefore,

urged that impugned order be quashed and set aside.

7. Learned counsel further submitted that even the F.I.R.

was registered against the deceased Swati Kumari and her brother

for the offences punishable under Section 302, 120B/34 of I.P.C. Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

The said case was pending before the concerned Trial Court.

Therefore, the deceased was having criminal history and,

therefore, there are chances that some other persons might have

killed her.

8. Learned counsel Mr. Ajay Kumar Thakur further

submits that the Trial Court has acquitted two other accused

namely, Shatruhan Paswan and Chandrasekhar Paswan against

whom it is alleged that the appellant Rameshwar Mahto with the

help of other two persons killed the deceased, and it is the case of

the prosecution in the form of deposition of PW-3 Shyama Devi

that she had seen the appellant Rameshwar Mahto, Parwati Devi

running from the place of occurrence, whereas, she has also seen

Chandrasekhar Paswan fleeing away from the said place with a

pistol. Thus, when the Trial Court has not believed the story of the

said witness while acquitting Chandrasekhar Paswan, there was no

reason for the Trial Court to believe the other part of the story of

the said witness. It is also submitted that against the order of

acquittal passed in favour of the two other accused, the informant

and/or State has not preferred any acquittal appeal. Learned

counsel, therefore, urged that all the present appeals be allowed

and thereby the impugned order be quashed and set aside. Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

9. On the other hand, learned A.P.P Mr. Jai Prakash

Singh appearing for the informant has referred the depositions of

the prosecution witnesses and thereafter submitted that the accused

Prince Kumar Mahto committed rape upon the deceased Swati

Kumari and, therefore, deceased Swati Kumari filed F.I.R. against

him. The present appellants were given threats that she should not

give deposition during the course of the trial of the said case.

Therefore, the F.I.R. with regard to the said incident was also filed

against the appellant Rameshwar Mahto and Parwati Devi in the

year 2014. Learned counsel has referred the observations made by

the Trial Court with regard to the said F.I.R. in the impugned

judgement. It is further submitted that despite the threats given by

the concerned appellants, Swati Kumari gave her deposition in the

Court, as a result of which, Prince Kumar Mahto came to be

convicted for commission of the offence punishable under Section

376 of the I.P.C. and he was sent to the jail. Thus, the prosecution

has proved the motive on the part of the accused to commit the

present offence.

10. Learned counsel would further submit that PW-3

Shyama Devi is though not an eye-witness to the occurrence, she

has specifically stated in her examination-in-chief that she reached

the place of occurrence after hearing the sound of firing. She had Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

seen Parvati Devi and Rameshwar Mahto fleeing from the said

place and Chandrasekhar Paswan was also with them and

Chandrasekhar Paswan was carrying a pistol. Learned counsel,

therefore, submitted that on the basis of the said evidence, the Trial

Court has rightly passed an order of conviction against the

appellants herein.

11. It is further submitted that the Investigating Officer

had seized the mobile phones of the deceased as well as the

appellants Parwati Devi and Rameshwar Mahto and C.D.R. of

mobile phones of the aforesaid three persons as well as the mobile

phone of Prince Kumar Mahto, who was in custody, were obtained

by the Officer. The said Officer has produced the C.D.R. of the

said mobile phones before the Trial Court and the same is

exhibited. Learned counsel submitted that from the C.D.R's

collected by the Investigating Agency, it is revealed that in the

morning on the date of occurrence at about 07:12 a.m. Prince

Kumar Mahto, who was in custody, dialed from his mobile phone

on the mobile phone of the deceased Swati Kumari and gave

threats. Thereafter, during 09:46 a.m. to 13:45 hrs. (01:45 p.m.),

Prince Kumar Mahto had talked thirteen times with his father and

also talked with his mother Parwati Devi between 09:41 a.m. to

13:42 hrs. six times. It is also submitted that the tower location of Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

the appellants Rameshwar Mahto and Parwati Devi is the place of

occurrence, whereas the location of mobile phone of Prince Kumar

Mahto is the area in which he was kept in custody. Thus, it is

submitted that the prosecution has proved the case against the

appellants/convicts beyond reasonable doubt. However, learned

counsel has fairly submitted that this is the case of circumstantial

evidence and there is no eye-witness to the occurrence in question.

12. Learned counsel for the informant has also fairly

submitted that against the order of acquittal passed by the Trial

Court against the two other accused, no appeal has been filed by

the informant or the State.

13. Learned A.P.P. has also opposed the appeals and

adopted the submissions canvassed by the learned counsel for the

informant. Both the learned counsels, therefore, urged that all the

three appeals be dismissed as the prosecution has proved the case

against the accused beyond reasonable doubt.

14. Having heard the learned counsel appearing for the

parties and having gone through the entire evidence led by the

prosecution before the Trial Court, it would emerge that,

admittedly, there is no eye-witness to the occurrence in question

and the case of the prosecution rests on the circumstantial

evidence. It is not in dispute that the informant Harilal Paswan, Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

who was the father of the deceased Swati Kumari, has not been

examined by the prosecution as the said informant died during the

pendency of the appeal because of his illness. If the fardbeyan

given by the informant Harilal Paswan is carefully seen, it is his

specific case that on 27.02.2016 at 01:30 p.m. when his daughter

Swati Kumari was returning from the school near the house of

Rampravesh Paswan, unknown persons came on the motorcycle

and opened fire from the pistols which they were carrying. On

hearing hulla, the informant immediately reached the place of

occurrence, and at that time, he saw that his daughter Swati

Kumari succumbed to the injuries and died. She had sustained

injuries on various parts of the body. He, therefore, tried to collect

information from the persons who were gathered near the place of

occurrence. However, no information was received from the

persons who were present with regard to the assailants. However,

the said informant has further raised doubt/suspicion that Prince

Kumar Mahto in connivance with his parents hatched the

conspiracy with a view to kill his daughter. The said informant has

also attributed motive by stating that Prince Mahto has been

convicted for the offence punishable under Sections 363, 366, 342,

323, 384, 386, 376/34 of I.P.C and S.C./S.T. Act. In the F.I.R. filed

by the deceased Swati Kumari, threats were given during the Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

pendency of the said trial that Swati Kumari should not give

deposition against the said accused. Despite that, she gave her

deposition before the Court and, therefore, the said accused has

been convicted and sentenced to suffer rigorous imprisonment for

life.

15. It further transpires from the record that PW-1

Pramod Kumar was examined by the prosecution as a witness to

the Seizure List. The bullet was found at the place of occurrence

which was seized by the Investigating Agency and the said witness

has signed the Seizure List. However, during cross-examination

the said witness has stated that the bullet was not recovered in his

presence. A number of persons gathered at the place and darogaji

asked him to sign the Seizure List.

16. PW-2 Kailash Paswan is the brother of the deceased

Swati Kumari. The said witness in examination-in-chief stated that

the occurrence took place on 27.02.2016 at 01:16 p.m. At that

time, he was present in his house. He heard the sound of firing,

therefore, he rushed towards the school. When he reached at the

place of occurrence, he found his sister dead with bullet injuries on

various parts of her body. Due to fear, nobody had informed at the

time of occurrence. Thereafter, he came to know that on the basis

of the direction given by Prince Kumar Mahto, who was in jail, Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Rameshwar Mahto, Shatrudhan Paswan, Karnal Paswan and Paro

Devi have killed his sister. The said witness has also stated about

the case of rape registered by his sister against Prince Kumar

Mahto in which Prince Kumar Mahto has been sentenced to suffer

R.I. for life. He also stated that Prince Kumar Mahto gave threats

from his mobile phone on various occasions. The said witness also

signed on the Inquest Report prepared by the Investigating Officer

and also signed the Seizure List.

16.1 During cross-examination, PW-2 stated that he

reached the spot/place of occurrence after three minutes and he is

not an eye-witness to the occurrence and is giving the deposition

on the basis of information gathered by him.

17. PW-3 Shyama Devi is the maternal aunt of the

deceased and sister-in-law of the informant. The said witness has

stated in her examination-in-chief that at the time of occurrence,

she was in the house of father of Swati Kumari (house of the

informant). She heard the sound of firing and rushed to the place

of occurrence. At that time, she had seen that her sister's daughter

was lying in the ditch and Parvati Devi and Rameshwar Mahto

were fleeing from the said place with Chandrasekhar Paswan who

was carrying a pistol. She further stated that Swati Kumari sent

Prince Mahto to jail. However, the said witness had identified only Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Parwati Devi who was present in the Court. She had identified

Prince Kumar as Shatrudhan and Chandrasekhar as Prince. She

could not identify any other accused.

17.1 During cross-examination, the said witness has

stated that she had stated before the Police while giving her

statement that she saw dead body and when enquired, villagers

informed her that assailants came on motorcycle and opened fire

on Swati Kumari, as a result of which, she died. She had also

given statement before the Police that the persons who had

gathered at the place of occurrence did not inform about the name

of the assailants. She had further admitted that when she reached

near the dead body of Swati Kumari, she did not find any of the

accused at the said place. She had also stated that Swati Kumari

was an easy virtue and a case was also registered against her. She

has also admitted that she is not an eye-witness to the occurrence.

18. PW-4 Doctor Raju had conducted the post mortem of

the deceased. The said witness found following injuries:-

Rigor Mortis- Absent Both of Upper and Lower limb. External Injuries-

Dark blood and Blood cloth present on face and other part of body.

Injuries-

(1) Lacerated Wound - one and half inch X one inch on right

ear margin inverted with charing and tattooing (entry wound) Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

(2) Lacerated Wound on left side neck behind left mandible

margin everted (exit wound) (3) Lacerated Wound - 3X2 inch on lateral side of left arm.

Margin inverted (entry wound) (4) Lacerated Wound - 4X3 inch on lateral side of left arm.

Margin everted (exit wound) (5) four and half inch X three and half inch deep to chest cavity in left side chest. Margine everted (entry wound) (6) Six X five inch deep to Chest chemical on right side. Margin everted (exit wound) (7) Lacerated wound - half inch X half inch deep to abdominal

cavity on right lumber region. Margin inverted (entry wound) (8) One inch X one inch deep to abdominal cavity wound left

side umblicus. Margin everted (exit wound) Dissection - Dark blood in base of cranial cavity, abdominal cavity, multiple perforation on small intestine. Uterus - small and non gravid. Stomach contained semi-digested food.

Cause of death - Haemorrhage and shock due to above injuries caused by fire arm.

Time since death - within eight hours.

19. PW-5 Brajesh Kumar Singh is the Investigating

Officer who had carried out the Investigation. The said Officer has

recorded the statement of the witnesses and collected the

documentary evidence in the form of C.D.R. of the mobile phones

of the deceased and all the three appellants. The said witness has

also seized one bullet and empty cartridges from the place of

occurrence. The said Officer also seized the mobile phone of the

deceased, accused Rameshwar Mahto and Parwati Devi. The said Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

witness also collected the information in the form of the C.D.R. of

the said mobiles and stated that on the date of occurrence at 07:12

a.m., accused Prince Kumar Mahto made phone call to deceased

Swati Kumari and the tower location of the said mobile at the

relevant point of time was Pokharia Kali Asthan, the place near the

jail in which the said accused was kept. The said witness further

stated that on the very same day, between 09:46 a.m. to 13:45 hrs.

(01:45 p.m.) accused Prince Kumar Mahto made phone calls from

his mobile to the mobile phone of the accused Rameshwar Mahto

i.e. his father and also made phone calls six times between the said

period to his mother i.e. the accused Parwati Devi. The tower

location of the mobile phone of accused Parwati Devi and

Rameshwar Mahto is the place of occurrence.

19.1 During the cross-examination, the said witness has

stated that the tower location of mobile phone of Rameshwar

Mahto and Parwati Devi, as per C.D.R., is Pirnager. He has also

admitted that the house of Rameshwar Mahto and Parwati Devi is

in Pirnager. He has further admitted that he had no knowledge with

regard to the phone calls made by the accused Prince Kumar

Mahto to his father. He did not obtain any material that the

accused Prince Kumar Mahto was talking everyday to his parents

on mobile phone.

Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

20. PW-6 Pawan Kumar Singh is the S.I. of Police, who

was working as System Officer at the Information Branch at

Begusarai District and on the order of Superintendent of Police,

he had collected the CDR and CAF of the relevant mobile

numbers of the accused as well as the deceased and copy of the

CDR and CAF was obtained from the computer. 30 pages

CDR/SDR and CAF was collected by him and the said Officer had

produced the copy of the same before the Court which was

exhibited.

20.1 During cross-examination, the said witness has

stated that except the informant Heeralal Paswan, he had not

obtained CAF of accused from customer application. In the SDR

of Prince Kumar Mahto, there is no name of his father. The said

Officer further stated that he has been duly authorized by the

Police Department to issue certificate.

21. We have considered the submissions canvassed by

the learned counsel appearing for the parties. We have also perused

the entire evidence produced by the prosecution before the Trial

Court. It would emerge from the record that the informant Harilal

Paswan gave his fardbeyan, pursuant to which a formal F.I.R.

came to be registered. From the fardbeyan it is revealed that the

informant, who was the father of the deceased, reached at the place Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

of occurrence immediately after hearing the sound of firing. When

he reached the place of occurrence, he inquired from the people

gathered there from which he came to know that his daughter

Swati Kumari was shot dead by unknown miscreants who were

boarded on motorcycle. Though the informant is not the eye-

witness to the occurrence in question, no doubt, in the fardbeyan,

the said witness has attributed motive on the part of the

appellants/accused for commission of the alleged offences.

However, the informant died during the pendency of the trial and,

therefore, his deposition before the Court was not recorded. It is

further revealed from the record that, admittedly, there is no eye-

witness to the occurrence in question and the case of the

prosecution rests on circumstantial evidence. The prosecution has

mainly placed reliance upon the deposition given by PW-3

Shyama Devi by contending that the said witness reached the place

of occurrence immediately after hearing the sound of firing and at

that time, she had seen that her sister's daughter was lying in the

ditch and Parwati Devi and Rameshwar Mahto were fleeing from

the said place with one Chandrashekhar Paswan who was carrying

a pistol. However, it is not in dispute that the said witness had

identified only Parwati Devi who was present in the Court and she

had identified Prince Kumar as Shatruhan and Chandrashekhar as Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Prince and she could not identify any other accused. Further, the

said witness has specifically admitted during cross-examination

that she had stated before the Police, when her statement was

recorded, that she saw dead body and, when inquired, villagers

informed her that the assailants came on motorcycle and opened

fire on Swati Kumari, as a result of which she died. She had

further stated in her statement given before the Police that the

persons who had gathered at the place of occurrence did not

inform about the names of the assailants. She had also admitted

that when she reached near the dead body of Swati Kumari, she

did not find any of the accused at the said place. Thus, we are of

the view that the reliance placed by the prosecution on the

deposition of PW-3 is misconceived. The said witness, for the first

time, has stated before the Court that she had seen three persons

fleeing away from the spot. Thus, there is an improvement in the

deposition given by the said witness.

21.1. At this stage, it is also pertinent to note that the

Trial Court has believed the story of PW-3 qua the accused

Parwati Devi and Rameshwar Mahto and not qua Chandrashekhar

Paswan. It is revealed that Chandrashekhar Paswan has been

acquitted by the Trial Court along with another accused Shatruhan Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Paswan. Surprisingly, on the same evidence of PW-3, the aforesaid

two accused have been convicted.

21.2. Even otherwise, it is relevant to observe at this

stage that as per the fardbeyan given by the father of the deceased,

he reached at the place of occurrence immediately after hearing

sound of firing and, when inquired, the persons gathered there

informed that unknown assailants came on motorcycle who killed

the deceased whereas, even as per the case of PW-3 Shyama Devi

who was also residing in the same house in which the informant

was residing, as she is sister-in-law of the informant, she

immediately rushed to the place of occurrence and she had seen

the present two appellants and one Chandrashekhar Paswan fleeing

away from the place of occurrence. If that is the case of PW-3

then, 'why she had not informed the informant that she had seen

three persons fleeing away from the spot?' Therefore also, the

deposition given by PW-3 is required to be discarded.

22. Learned counsel appearing for the informant as well

as the learned A.P.P. have heavily placed reliance upon the

deposition of the Investigating Officer, PW-5. It is submitted that

the said witness had collected documentary evidence in the form

of CDR of the mobile phones of the deceased and the appellants

and the said witness has also seized mobile phones of accused Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Parwati Devi and Rameshwar Mahto as well as of the deceased

Swati Kumari. It is contended that the accused Prince Mahto made

phone calls to his father and mother on the date of the occurrence

on various occasions. It is further submitted that the accused

Prince Mahto also made phone call to the deceased at 07:13 a.m.

in the morning and gave threats. However, it is relevant to note

that merely because phone call was made to the deceased, it cannot

be presumed that the threat was given to her on her mobile phone.

The deceased had not informed any authority with regard to the so

called threats given by accused Prince Mahto from jail. It was also

contended that the tower location of the mobile phone of accused

Parwati Devi and Rameshwar Mahto is Pirnager, i.e. the place of

occurrence. However, it is also not in dispute that the said two

appellants/convicts are residing in the same area, i.e. in Pirnager.

The said aspect has been admitted by Investigating Officer during

his cross-examination. Thus, when the said appellants/convicts are

residents of Pirnager, then naturally their tower location would be

of the same area and only on that basis it cannot be presumed that

the said appellants have killed the deceased by hatching

conspiracy with accused Prince Mahto.

23. Even the CDR and CAF of the relevant mobile

numbers was collected by PW-6 who was working as System Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Officer at the Information Branch in the concerned District. The

said Officer had not produced the order of Superintendent of

Police by which he was directed to take out the said CDR from the

computer. The said Officer has issued the certificate under Section

65(B) of the Evidence Act by stating that he is authorized to issue

such certificate. However, such authority letter was not produced

by him. It is also not in dispute that service providers of the

concerned mobile company have not been examined by the

prosecution.

24. Even assuming that accused Prince Mahto had made

phone calls to his parents on the date of occurrence on various

occasions, even then, only on that basis, it cannot be presumed that

all the three accused hatched the conspiracy and the appellants

Parwati Devi and Rameshwar Mahto have killed the deceased by

firing.

24.1. It is also relevant to note that pistol/revolver from

which firing took place has also not been recovered/discovered

and, therefore, merely by attributing some motive to the accused, it

cannot be presumed that the appellants/convicts only have

committed the alleged offences.

25. At this stage, it is also pertinent to observe that the

deceased and her brother, i.e. PW-2, were also accused of the Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

F.I.R. registered under Section 302 of I.P.C. against them.

Therefore, it was a specific defence of the accused that as the

deceased was having criminal history, there are chances that some

other persons might have killed her. The defence has, therefore,

produced copy of the F.I.R. which was registered against the

deceased and her brother which is exhibited as Exhibit-B.

26. In view of the aforesaid facts and circumstances of

the present case, we are of the view that the prosecution has failed

to complete the chain of circumstances from which it can be said

that the appellant/convicts only have committed the alleged

offences and none else. Thus, the prosecution has failed to prove

the case against the appellants/convicts beyond reasonable doubt

and, therefore, the Trial Court has committed grave error while

passing the order of conviction against the present appellants. The

impugned order is, therefore, required to be quashed and set aside.

27. Accordingly, the impugned judgment of conviction

dated 06.04.2018 and order of sentence dated 09.04.2018 passed

by learned Special Judge S.C./S.T. (POA) Act, Begusarai in

connection with Naokothi P.S. Case No. 12 of 2016 is quashed ans

set aside. The appellants, namely, Parwati Devi @ Paro Devi,

Prince Kumar Mahto @ Prince Kumar and Rameshwar Mahto are

acquitted of the charges levelled against them by the learned Trial Patna High Court CR. APP (DB) No.681 of 2018 dt.11-10-2023

Court. They are directed to be released forthwith, if their presence

is not required in any other case.

28. The appeal is, accordingly, allowed.

(Vipul M. Pancholi, J)

(Chandra Shekhar Jha, J) Sachin/-

AFR/NAFR
CAV DATE                          NA
Uploading Date                18.10.2023
Transmission Date             18.10.2023