Ram Bahadur Mahto @ Bahadur Mahto vs The State Of Bihar
2023 Latest Caselaw 4599 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL APPEAL (DB) No.1047 of 2018
             Arising Out of PS. Case No.-29 Year-2007 Thana- MAKER District- Saran
     ======================================================

Ram Bahadur Mahto @ Bahadur Mahto, S/o Late Sheopujan Mahto, R/o Vill.- Jamalpur, P.O. Maker, P.S.- Maker, District- Saran.

... ... Appellant Versus The State Of Bihar

... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 421 of 2018 Arising Out of PS. Case No.-29 Year-2007 Thana- MAKER District- Saran ======================================================

1. Hari Narayan Mahto, Son of Late Laxaman Mahto,

2. Manoj Mahto @ Manoj Kumar Mahto, Son of Hari Narayan Mahto, Both are resident of Village- Pir Maker, Dihi Tola Brahamsthan, P.S. Maker, in the District of Saran, Chapra.

... ... Appellants Versus The State Of Bihar

... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 425 of 2018 Arising Out of PS. Case No.-29 Year-2007 Thana- MAKER District- Saran ======================================================

1. Ramanand Mahto, S/o Late Shiv Pujan Mahto,

2. Ramjee Sah S/o Late Bharat Sah, Both are resident of village - Jamalpur, P.S.- Maker, in the District of Saran, Chapra.

... ... Appellants Versus The State Of Bihar

... ... Respondent ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) Nos. 1047 of 2018 & 425 of 2018) For the Appellant/s :Mr. Rajeeva Roy, Sr. Advocate Mr. Sunil Prasad Singh, Advocate Mr. Shashank Shekhar Sinha, Adv.

Mr. Makardhawaj Upadhayay, Advocate Mr. Akash Keshav, Advocate Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

For the Respondent/s : Mr. Abhimanyu Sharma, APP (In CRIMINAL APPEAL (DB) No. 421 of 2018) For the Appellant/s : Mr. A.K. Thakur, Advocate Mrs. Vaishnavi Singh, Advocate Mr. Ritwik Thakur, Advocate For the Respondent/s : Mr.Abhimanyu Sharma, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 15-09-2023

The present batch of appeals has been preferred against

the judgment of conviction dated 24.01.2018 and the order of

sentence dated 02.02.2018 passed by Sri Om Prakash Pandey,

IXth Additional Sessions Judge, Saran, Chapra in Sessions Trial

No. 290/2016, New No. 293/2016, arising out of Maker P.S. case

No. 29/2007, G.R. No. 2691/2007 whereby and whereunder all

the appellants have been convicted for the offences under

Sections 148, 302/149 and 380/149 of the Indian Penal Code (for

short 'I.P.C.'), Section 27 of the Arms Act and Section 17 of the

C.L.A. Act and sentenced to undergo rigorous imprisonment of

three years under Section 148 of the I.P.C., imprisonment for life

and a fine of Rs. one lakh each under Section 302/149 of the

I.P.C., rigorous imprisonment for three years and a fine of Rs.

5,000/- each under Section 380/149 of the I.P.C., rigorous

imprisonment for five years and a fine of Rs. 10,000/- each Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

under Section 27 of the Arms Act and rigorous imprisonment

for six months under Section 17 of C.L.A Act. All the sentences

so imposed on the appellants shall run concurrently and in

default of payment of fine amount, the appellants shall undergo

additional sentence for six months, one month and two months

respectively.

2. The prosecution case, as per the fardbeyan of Mukesh

Kumar Sharma @ Guddu Sharma recorded on 19.08.2007 at

20.45 hrs at his residence at Machhahi Jamapur, is that today i.e.

19.08.2007 the informant went to the Maker bazar and returned

to his house at about 19.30 hrs. The informant further stated that

while he was talking to Rohit and Deepak at the dalan and

informant's father, driver, brother, private bodyguard, Mritunjay

Singh and neighbours Srikant Sharma, Muneshwar Sharma and

his uncle Shambhu Sharma were talking at the varandah and the

children were studying inside the house and lady members were

cooking and were also doing domestic works, suddenly, 50-60

persons including 5-6 ladies, armed with various weapons, came

to his door. The informant further stated that they captured the

persons present at the varandah and assaulted them with bamboo

stick and also tied the legs and hands of female members and

started indiscriminate firing and exploding bombs and were Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

searching for informant. Out of fear, the informant jumped from

the room through a window in the bush at the back side of his

house and saw that Rampukar Mahto along with 25 others

named in the F.I.R. and some unknown persons (to whom the

informant can identify on seeing face) set on fire the Bolero

vehicle, tractor and motorcycles. When the informant came

back to his house, he saw that his wife, uncle and bodyguard

Mritunjay Singh were lying dead and there were injuries on their

person of firing and bomb. The informant further stated that on

search it was found that his DBBL gun No.19517, 315 Bore Rifle

of the personal body guard, a VIP containing cash of Rs.

1,50,000/-, ornaments of gold, silver, clothes and some papers

including of vehicle and Panchayat, cheques, three mobiles were

also taken away by the accused persons. The accused persons

also destroyed the house hold articles of the informant. The

accused persons pasted some posters on the wall showing

maowadi and naxali slogans. The informant further stated that

after the incidence, his uncle Pramod Sharma and servant Loha

Singh were missing.

3. On the basis of fardbeyan of the informant Maker P.S.

case No. 29/2007 was registered under Sections 147, 148, 149,

380, 427, 302, 307 of I.P.C., Section 27 of the Arms Act, Sections Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

3, 4 and 5 of the Explosive Substance Act and Section 17 of

C.L.A. Act. The police after investigation submitted charge-

sheet against the appellants. The cognizance of the offence was

taken by the learned jurisdictional Magistrate and thereafter the

case was committed to the Court of Sessions. Charges were

framed against the appellants on which they pleaded not guilty

and claimed to be tried.

4. During the trial, in order to substantiate the charges

against the accused persons, the prosecution examined as many

as nine witnesses, namely, PW1 Shailesh Kumar Sharma, PW2

Raj Deo Sharma, PW3 Mithilesh Devi, PW4 Mukesh Kumar

Sharma (informant), PW5 Surendra Mahto, PW6 Sri Kant

Sharma, PW7 Vijai Kumar, PW8 Santosh Kumar and PW9

Grindra Shekhar Singh. The prosecution has also produced

exhibits, namely, Ext. 1 signature of witness Shailendra Kumar

Singh on seizure list, Ext. 1/1 signature of Mukesh Kumar

Sharma on fardbeyan, Ext.2 post-mortem report of Mritunjay

Kumar Singh, Ext. 2/1 post-mortem report of Pawan Devi, Ext.

2/2 post mortem report of Shambhu Sharma, Ext. 3 signature and

writing of fardbeyan, Ext. 3/1 pagination on fardbeyan, Ext. 3/2

formal F.I.R., Ext.3/3 complete seizure list, Ext.3/4 to 3/6

inquest report, Ext. 4 injury report of Pramod Sharma and Ext. Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

4/1 injury report of Srikant Sharma. The defence has also

produced one witness Malti Devi D.W.1 in support of its case.

No documents has been produced on behalf of the defence.

Thereafter, the statements of the appellants were recorded under

section 313 of the Cr.P.C and after conclusion of the trial, the

learned trial Court convicted the appellants in the manner stated

above.

5. Learned counsel for the appellants has submitted that

the trial suffers from several infirmities that have been

overlooked by the learned trial Court and, therefore, the

impugned judgment is not sustainable in the eyes of law. It has

been contended that the prosecution has miserably failed to prove

the place and manner of occurrence beyond reasonable doubts, as

the material contradictions and discrepancies in the testimony of

the prosecution witnesses cast doubts to the case of the

prosecution and the true facts have been suppressed by the

prosecution. In order to buttress this contention, attention of this

Court has been drawn towards the deposition of the eye-

witnesses to assert that there there are severe discrepancies in the

ocular testimony of PW 1, PW 2, PW 3 and PW 4 and it has been

pointed out that their testimonies suffer from inconsistencies and

deserve to be rejected. The attention of this court has also been Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

drawn towards the absence of any source of light and thereby, the

possibility of participation of appellants in the alleged crime

cannot be believed to be true. Thus, it was contended that

appellants had been falsely implicated in this case and had no

role to play whatsoever in the commission of the alleged offence.

Therefore, it has been argued that there are severe lacunae in case

of the prosecution and the chain of circumstances do not

unerringly point towards the guilt of the appellants. Hence, the

findings of the learned trial Court are bad in law, wrong on facts,

bereft of legal reasoning, devoid of merit and the judgment of

conviction is fit to be set aside.

6. Learned APP for the State, on the other hand, has

submitted that the judgment of conviction and order of sentence

under challenge require no interference as the prosecution has

been able to prove the case beyond all reasonable doubts. It has

been submitted that the prosecution witnesses have remained

consistent in the testimony during the course of trial and there

does not remain any lacuna in the case of the prosecution. The

minor inconsistencies in the testimony of the witnesses cannot be

a ground to reject their evidence as a whole. It has been further

contended that there does not lie any hiatus in the chain of

circumstances and all the evidence points towards the guilt of the Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

appellants. Therefore, it has been argued that guilt of the

appellants has been satisfactorily proved by the evidence adduced

during the course of trial and there is no infirmity in the

judgment of conviction of the learned trial Court.

7. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough

examination of the entire material available on the record, the

following issues arise for consideration in the present appeal:

(I) Whether the prosecution has been able to establish the place of occurrence beyond all reasonable doubt? (III) Whether the prosecution has been able to establish the source of identification under which the appellants have been identified?

(III) Whether the manner of occurrence, as narrated by the eye-witnesses, has been proved beyond all reasonable doubt?

8. With reference to issue no. I, it is found upon the perusal

of the fardbeyan that the entire incident is said to have taken

place at the house of the informant. Also, from the careful

reading of the testimonies of PW 1, PW 2, PW 3 and PW 4

(informant), it appears that the place of occurrence is the house of

the informant. However, in sharp contradistinction to such

testimonies, the Investigating Officer (PW 7) has pointed out

three different places of occurrence. He has stated in para 3 of his

deposition that the dead body of one of the deceased (Shambhu Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

Sharma), was found inside the room of a separate house which

belongs to the deceased; dead body of another deceased (Pawan

Devi), was found inside the room of a separate house which was

a joint house of informant and his uncle (deceased); and the dead

body of one Mritunjay Kumar Singh, who is the bodyguard of

informant, was found in the bush situated in southern side of

pagdandi.

Furthermore, the Investigating Officer (PW 7) has stated

in his deposition that he did not find any mark of violence at the

said place of occurrence. It is relevant to take note that even

though the deceased persons had sustained firearm injuries and

bomb blast injury on their body, as is evident from the post-

mortem report (Exhibits 2, 2/1 and 2/2), still, no marks of bomb

or bullet were found at the wall or door of the said place of

occurrence by the Investigating Officer. Thus, considering the

facts of this case as indicated above, the place of occurrence as

narrated by the prosecution is doubtful. Such a fundamental

defect casts reasonable doubts as to the genuineness of the

prosecution's case. In this regard, it is pertinent to take note of

the decision of Hon'ble Supreme Court, passed in the case of

Syed Ibrahim versus State of Andhra Pradesh, reported in

(2008) 10 SCC 601, wherein it has been held that when the place Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

of occurrence itself has not been established, it would not be

proper to accept the version of the prosecution.

In light of the factual position as discussed above, this

Court is of the opinion that there exists reasonable suspicion as to

the place of occurrence of the alleged incident. The prosecution

has not been able to prove the place of occurrence beyond the

iota of reasonable doubts.

Accordingly, the issue no. (I) is decided in the negative.

9. With reference to issue no. II, it is relevant to take note

that out of four prosecution eye-witnesses, only two of them have

claimed to identify the appellants in the presence of light. The

PW 2 in para no. 5 of his deposition has stated that he identified

the appellants in a solar light which was at the door of the house

of the informant, on the other hand, the PW 4 (informant) in para

no. 8 of his deposition has stated that he identified the appellants

in a bulb light which was at the door of his house. However, it is

worthy to take into account the fact that the Investigating Officer

has deposed that dead bodies of two deceased were found inside

the room of two completely separate houses and one dead body

was found in a bush situated in the southern side of pagdandi.

Thus, in light of this fact, it is quite difficult to accept that the

above mentioned witnesses had been able to identify the Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

appellants and their involvement in the alleged offence in the

light emitted by the bulb or solar light which was present at the

door of the informant's house.

The prosecution's case gets further hammered in light of

the fact that no evidence has been brought on record by the

Investigating Officer to show the presence of any solar light or

bulb which could have been used for the identification of the

appellants. It would be relevant to take note of the decision of

Hon'ble Supreme Court in the case of State of Madhya Pradesh

versus Ghudan reported in (2003) 12 SCC 485 wherein it was

observed that:

".. If really there was a tube light by which PW-26 identified the respondent then investigating agency would certainly have shown the existence of a tube light and its placement in the sketch because it was a very important fact mainly because the identification of the accused is a vital factor to be proved by the prosecution. The benefit of the omission to point out the existence of such light in the sketch, in our opinion, should go to the accused. .."

Therefore, in the light of the above referred decision of the

Hon'ble Supreme Court, in the facts of the present case we find

that the prosecution has failed to establish and prove the source

of identification under which the appellants have been identified.

Accordingly, the issue no. (II) is decided in the negative. Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

10. With reference to issue no. III, it is pertinent to take

note that there are severe inconsistencies in the testimony of eye-

witnesses as regards the manner of occurrence. The PW 1 has

specifically deposed in para 1 of his deposition that four persons

namely, Lalmati Devi, Ramji Mahto, Jitendra Ram, Tarkeshwar

Ram, had recklessly fired upon the Shambhu Sharma (deceased)

and thereby he died. In contrast, PW 2 has deposed in para no. 3

of his deposition that four persons namely, Bahadur Mahto,

Rakesh Mahto. Deepak Mahto, Dr. Ambika Rai had started firing

and due to which Shambhu Sharma (deceased) died. In contrast

to the statements made by PW 1 and PW 2, different sets of

persons were named by PW 3 and PW 4 regarding the firing

made on the Shambhu Sharma (deceased).

Further, the PW 3 has deposed in para no. 3 and 4 of his

deposition that ten persons namely, Pukar Mahto, Bahadur

Mahto, Ambika Rai, Amin Sahni, Madan Ram, Jitendra Ram,

Lalmati Devi, Rakesh Mahto, Tarkeshwar Ram, Harinarayan

Mahto, had fired bomb at Pawan Devi (deceased) due to which

she died, on the other hand, other eyewitnesses had deposed that

Ram Pukar Mahto had fired a bomb at Pawan Devi (deceased).

And, with respect to the death of Mritunjay Kumar Singh

(deceased), PW 3 had named the same set of persons who were Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

involved in the death of Pawan Devi (deceased). Meanwhile, PW

1 and PW 4 has deposed that three persons namely, Bahadur

Mahto, Rakesh Mahto and Deepak Mahto had fired on Mritunjay

Kumar Singh (deceased) which caused his death. In contrast to

above statements, PW 2 has deposed that the bullet that hit and

caused the death of Mritunjay Kumar Singh (deceased) was fired

by one Bahadur Mahto. Thus, it appears that all the eye witnesses

have come with different sets of people on the point of assault.

Moreover, according to the fardbeyan, the accused

persons have looted DBL Gun no. 19517, 315 bore rifle, VIP

suitcase, cash, ornaments of gold & silver, clothes, important

documents including the papers of vehicles, Panchayat,

government cheques and three mobile phone sets. But, the

statements made by PW 1, PW 2, PW 3 and PW 4 in regard to

the articles that have been looted by the accused persons neither

tally with each other nor with the allegations made in fardbeyan.

It has been further pointed out that the prosecution has not

produced any arms licence to prove that they were in possession

of any licensed firearm which they claim to have been looted by

the appellants. Thus, the deposition of eye witnesses regarding

the allegation of theft is doubtful at the threshold itself. Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

In light of the factual position as discussed above, this

Court finds that there is inconsistency and variation in the

testimony of the prosecution witnesses, who contend to be the

eyewitnesses to the occurrence. It is a trite principle of criminal

jurisprudence that the testimony of an eye witness must not be

dangling. It must be free from blemish and devoid of any

ambiguity, uncertainty and loopholes. In criminal law, loose and

contradictory statements cannot be relied upon, much less than

forming the basis of conviction. In the case of Sunil Kumar

Shambhudayal Gupta and others versus State of Maharashtra

reported in (2010) 13 SCC 657, it has been observed that :

"The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt."

Therefore, in light of the aforesaid discussions and

considering the inconsistencies in the testimonies of the eye-

witnesses, coupled with the fact that no source of identification

has been established for connecting the appellants with the

alleged offence, this Court is of the view that the prosecution has

not been able to prove the manner of occurrence beyond Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

reasonable doubts and this certainly makes the entire case

doubtful.

Accordingly, the issue no. (III) is decided in the negative.

11. In criminal law, loose, contradictory and

uncorroborated statements cannot be relied upon, much less than

forming the basis of conviction. The statement of an eye witness

must be free from blemish and devoid of any ambiguity,

uncertainty and loopholes. Rather, the onus on the prosecution is

to establish that the chain of circumstances is so complete that

possibility of any other hypothesis is negated out in toto and the

guilt of the accused is unerringly pointed out.

12. In light of the above mentioned legal positions and on

the basis of the findings arrived at on the issues formulated

above, we are of the considered opinion that the conviction of the

appellants in all the appeals is not sustainable in the eyes of law

and the prosecution has failed to prove its case beyond all

reasonable doubts.

13. Therefore, all the appeals stand allowed. The

judgment of conviction dated 24.01.2018 and the order of

sentence dated 02.02.2018 passed by Sri Om Prakash Pandey,

IXth Additional Sessions Judge, Saran, Chapra in Sessions Trial Patna High Court CR. APP (DB) No.1047 of 2018 dt.15-09-2023

No. 290/2016, New No. 293/2016, arising out of Maker P.S. case

No. 29/2007, G.R. No. 2691/2007, are set aside.

14. Since the appellants of all the three criminal appeals

are in jail custody, they are directed to be released from custody

forthwith, if not wanted in any other case.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Pankaj/-

AFR/NAFR                NAFR
CAV DATE                05.09.2023
Uploading Date          15.09.2023
Transmission Date       15.09.2023