Siva @ Siv Narain Mahaldar and Biso @ Bishwanath Mahaldar vs State of Bihar

B.N.P. Singh, J.—In a macabre incident that took place in the house of Satish Mahaldar (deceased) at about 7 p.m. on March, 1993, the prosecution suffered less than three casualties and the facie matrix are that on the said fateful day, Rani Devi (P.W. 15) was cooking inside her house and other house rates were gossiping at the door of the 7-8 persons, holding lethal weap-(sic) came and she identified along with the Appellants and others. It was that Salamat Mian, one of the Appellants, pumped a bullet in the chest of her husband and when her father-in-law wanted to escape, he was gunned down by Prabhu Mahaldar and others, in the passage. It was alleged that when her mother-in-law wanted to escape, she too was chased by them. Rani Devi alleged to have ran towards the village having scaled over the wall. When she returned to her house, she noticed her father-in-law, mother-in-law and husband dead in pool of blood. As Shrikant Mahaldar, one of the miscreants, too was found dead in the Courtyard, it was apprehended that he died from bullet injury when the miscreants took recourse to in-discriminate firing. Though no other belongings were removed from the house by the miscreants, the licensed gun was found missing. Land dispute was said to be the genesis of the incident and with these accusations, fardbeyan of Rani Devi was recorded by Shri M.R Bhagat, Sub Inspector of Karha Police Station at Mirzapur, pursuant to which investigation commenced. In course of usual investigation, the investigating officer recorded statement of witnesses, visited the place of occurrence, which was the house of the deceased Satish Mahaldar, seized incriminating objects, sent the dead body to mortuary and on receipt of the autopsy report, having concluded investigation, laid charge sheet before the Court, pursuant to which trial commenced.

It seems that on 5th February, 1994, charges were framed u/s 396 of the Indian Penal Code (IPC) against Prabhu Mahaldar, Shivu Mahaldar, Salamat Mian, Bisu alias Bishwanath Mahaldar and Gonawa Mandal. Charge u/s 302/149 IPC also was framed against them. Record of the trial Court would bear the fact that on conclusion of trial, arguments were heard on 6th July, 1995 when the proceeding was adjourned for judgment on 18th July, 1995. However, on that day, charges were amended by the trial Court, as the charge u/s 302/34 IPC was framed against Shivu Mahaldar, Salamat Mian, Bishu alias Bishwanath Mahaldar, and Prabhu Mahaldar. Subsequent to that, charge u/s 302/149 IPC was against Suresh Mandal and Wakil Mahto.

Defence of the Appellants before the trial Court and also this Court had been plain denial of the entire allegations and they ascribed false implication due to persisting land dispute between the parties. In the eventual trial that commenced, the prosecution examined 17 witnesses including the family members of deceased Satish Mahaldar. Two witnesses were also examined as Court witnesses and the defence too examined three witnesses, who brought on the record, some documents including certified copy of some sale deeds, and the trial Court on consideration of evidences placed on the record, regard being had to the broad features of the prosecution case, while acquitted the rest, rendered verdict of guilt finding Prabhu Mahaldar and Salamat Mian guilty u/s 302/34 IPC and sentenced them to suffer rigorous imprisonment for life. They were also sentenced to pay a fine of Rs. 10,000/-, in default of which, they were to suffer rigorous imprisonment for two years. The fine so realised from the Appellants, was to be paid to the widow of Satish Mahaldar. Shiva alias Shiv Narayan Mahaldar and Bisu alias Bishwanath Mahaldar suffered conviction u/s 302/149 IPC and they were sentenced to suffer rigorous imprisonment for life. All the convicts preferred three appeals before this Court. Criminal Appeal No. 332 of 1995 was preferred by Shiv alias Siv Narain Mahaldar and Biso alias Bishwanath Mahaldar, while Cr. Appeal No. 349 of 1995 was preferred by Prabhu Mahaldar and Cr. Appeal No. 360 of 1995 was preferred by Salamat Mian. Since all the three appeals arise out of the common judgment, they are being disposed of by this common order.

Lot of arguments were addressed to the Court to assail the findings recorded by the Court below and it is sought to be urged that in view of tacit admission of the prosecution witnesses about persisting land dispute between the parties and serious infirmity that has crept in their evidences, false implication of the Appellants cannot be ruled out. Contentions were raised that the ocular testimony of the witnesses and also the positive findings recorded by the doctor were in sharp contrast, which makes the prosecution witnesses unworthy of credence. The learned Counsel would draw our attention to the testimony of P.W. 15 Rani Devi and it is urged that if she is to be considered credible by the Court, both Jittan Mahaldar and Satish Mahaldar suffered bullet injuries on chest when the miscreants took recourse to firing. However, there was no corresponding finding of the doctor who held autopsy over the dead bodies. Yet, it is urged that the evidence of the ocular witnesses suffered material contradiction, and narrations made by them were not in tune with the statements rendered by them before the Police. While reiterating their submissions, it is urged that though the occurrence is shown to have taken place at about 7 p.m., when the darkness must have set in, identification of the Appellants in darkened atmosphere without any means of identification was a remote possibility. Positive finding recorded by the doctor about injury No. 1 on the person of Jitan Mahaldar having been caused by explosion of bomb, it is urged, was not in conformity with the ocular testimony of witnesses as none of them would state before the Court about miscreants ever having exploded bomb during the incident, and the last argument canvassed at Bar was that killing of three persons seems to have overweighed the reasoning assigned by the trial Court for convicting the Appellants. (sic)ng these contentions, it is sought to (sic)fed on behalf of the State that though (sic)by of witnesses had turned volte face (sic)State, the ocular testimony of Raj Kumari Devi (P.W. 13), Sushila Devi (P.W. 14) and Rani Devi (P.W. 15), deserve all (sic)ence and as for identification of the (sic)Bants, it is urged that since they were (sic)bours and not the strangers, their identification by these witnesses was not usual feature of the prosecution case.

Now, we wish to delve upon the (sic)nony of the witnesses. Though Khakhri Devi (P.W. 1), Tikku Mahaldar (P.W. 2), Mahaldar (P.W. 3), Kamleshwari Prasad Singh (P.W. 4), Nagru Mahaldar (P.W. 5), Dinesh Thakur (P.W. 6), Lallan Kumar Mahaldar (P.W. 8), Upendra Rajak(P.W. 10) and Mahendra Prasad Singh (P.W. (sic) had turned hostile at trial, Baso Mahaldar (P.W. 3) and Lalan Kumar Mahaldar (P.W. 8) would state about factum (sic)ing of Jitan Mahaldar, Satish Mahaldar (sic)halo Devi. Rajendra Thakur (P.W. 7) (sic)dered by the State and there was (sic)material in his evidence to merit (sic)ation. Dinesh Prasad Sah (P.W. 9) (sic)ate about seizure of blood stained (sic)te cartridges and empty shell (sic)from (sic)e of occurrence by the Investigation or. Atul Chandra Jha (C.W. 1) was (sic)I witness who brought on record (sic)in, seizure list and also inquest (sic)teni Devi (P.W. 15), who was the (sic)f the fardbeyan, would reiterate her (sic)on made before the Police with some (sic)iriations about hiding herself, pur- the killing of the family members, (sic)ild state, that while she was cook-(sic)geal, she came out of the inner apart-(sic)of the house and noticed Salamat (sic)Shaving pumped bullet on her hus-(sic) About other Appellant Prabhu Mahaldar, she would state that he took (sic)rse to firing causing injury to Jitan Mahaldar, pursuant to which her mother-in-law escaped outside and she concealed herself in the house. She would also narrate about miscreants having removed gun from the house and retiring from the place of occurrence. She stated about the Police Officer having visited the place of occurrence. She would state to have noticed Shrikant dead in the Courtyard while her father-in-law and also her husband were found dead. As for her mother-in-law, she would state that she was found dead in the Courtyard of Khakhri Devi. The witness would state to have rendered statement before the Police. However, she would state to have identified only the Appellants. As for narration made by the witness about resiling from her previous statement with regard to identification of other miscreants, her attention was drawn by the State. The other witness on whom reliance was placed by the Court below was Sushila Devi (P.W. 14). The witness would state that while she was cooking food in the house, she heard sound of firing and when she came out, she noticed Shrikant Mahaldar, Prabhu Mahaldar, and Salamat Mian exhorting their associates to liquidate them and not to spare any one of them. The witness would further state that Salamat Mian and Prabhu Mahaldar escaped on a motor cycle. The witness would state to have noticed Satish Mahaldar dead on the chair at darwaja while other was found inside the house. About Jhalo Devi, who happened to be her mother-in-law, the witness would state that she was found dead in the Courtyard of Khakhri Devi. The other witness examined by the State and on whom reliance was placed, was Raj Kumari Devi (P.W. 13). The witness would state before the trial Court that while she came back to her house from the house of Dineshwar Mahaldar where she had been for payment of wages to the labourers, she noticed 7-8 persons who killed her husband''s elder brother causing fire-arm injuries. When her father-in-law wanted to escape, he was shot dead by Prabhu Mahaldar, and then her mother-in-law ran towards the Courtyard of Khakhri Devi. The witness would claim to have identified the Appellants among the miscreants and she would state to have come to her house only on arrival of the Police when she noticed the family members dead. The witness would state about some animosity with the Appellants.

Dr. Lakshmi Narayan Mandal (P.W. 12), who was stated to have held autopsy over the dead body of Jitan Mahaldar, noticed right side of face blown up, remaining portion shattered, skull bone fractured and one wound in occipital area measuring about 1" x 1" with inverted margin. The other injury was on left arm which was wound of entry, 1/2" diameter with black margins and broken bones, mid back wound of entry 3/4" diameter, black margin and inverted margins, lacerated wound 6" x 1/2" right upper chest wound of exit 3/4" x 1/2" in auxila with inverted margins and two lacerated wounds 1/2" x 1/4" x 1/4" deep on left side of face. On disSection, the doctor found brain tissues lacerated filled with blood clots, facial bones and skull bones broken into pieces. The doctor would state about extraction of bullet from the wound. The wound extending to the right side of the chest and right lung was lacerated filled with blood clots. One bullet was taken out from the right lung. 6" x 1/2" oblique entrance wound was found which communicating to the wound of exit in auxila. Wound was found going through right upper lung. Wound No. 1 in the estimation of the doctor appeared to have been caused by splinters. The cause of death in the estimation of the doctor was due to shock and haemorrhage, caused by these injuries.

On that day, the doctor stated to have held autopsy on the dead body of Satish Mahaldar also and he stated to have noticed gun shot or fire arm injuries wound of entry 2" x 7" behind mandible on left side of the neck and wound of exit 8" x 4" extending from neck to right side of the cheek. Cause of death in the estimation of the doctor was shock and haemorrhage caused by these injuries. On the same day the doctor held autopsy over Jhalo Devi Shrikant Mahaldar and noticed injuries on their persons.

Other witness who deserves consideration, was Mahesh Prasad Bhag(sic) (C.W. 1) who was Investigating Officer of the case. The witness would state that on receipt of some information about incidenet in village Mirjapur at about 8.25 p.m., he along with other Police Officer visited house of Jitan Mahaldar. The Police Officer noticed four dead bodies which were of Jitan Mahaldar, Satish Mahaldar and Jhalo Devi and Shrikant Mahaldar. He would state to have prepared inquest report over the dead bodies and seized blood stained earth(sic) cartridges of the rifle, empty shells of can tridges and also a gun from the place occurrence. The witness would statement have noticed dead body of Satish Mahaldar outside the house on a chair. In the(sic) sage which was used for going toCourtyard from the outside, he noticed de(sic) body of Jitan Mahaldar in the pool of blood. The Police Officer noticed pieces of humanflesh on the walls and also on the motord(sic) cle that was kept there. The dead body(sic) Jhalo Devi was found in the Courtyard(sic) Khakhri Devi in the pool of blood.

As has been stated earlier, the(sic) narrations made by Rani Devi (P.W. 5), whowas maker of the fardbeyan, was reite(sic) tion of early version with minor variation about her concealment in house, pursuance to killing of the house inmates which(sic) ther affects broad feature of the pros(sic) tion case, nor can it be considered.(sic) variation from her early version which (sic)endered before the Police. Raj Kumari P.W. 13) too claimed to be an ocular is of the incident, though she did not (sic)-the assailants of Satish Mahaldar. (sic)Br-Sushila Devi, narration made by this less about having noticed Prabhu Mahaldar and Salamat Mian making good (sic)escape from side of her house was not to be impeached by the defence, as (sic)such narration appears to have been (sic)le by the witness before the Police and Police Officer, too who recorded her concealment, would negate the assertions (sic)by the witness, and though the witness would buttress the prosecution asser-about the factum of killing of Satish Mahaldar, Jitan Mahaldar and Jhalo Devi, complicity of the Appellants, in view of such ations conspicuously wanting before the (sic)ce was not established from her evidence.

Lot of arguments were addressed (sic)the Court about positive findings reled by the doctor to be in sharp conflict the testimony of ocular witnesses. We (sic) noticed that though injury No. 1 was (sic)adered to be caused by some explosive like bomb, on the dead body of Jittan Mahaldar, by the doctor who held autopsy (sic)the dead body, other, injuries were (sic)iered to have been caused by bullet (sic)felt would not negate the prosecution about Jitan Mahaldar sustaining bullet (sic)ion his person. Though the doctor (sic)State about injury No. 1 to have been (sic) by explosive substance, which aptly(sic) appears to be not in tune with the (sic)ony of ocular witnesses, the Police (sic)who visited the place of occurrence (sic) state about presence of remains of (sic)Hons of bomb, and that apart even (sic)Ices of human flesh noticed on the (sic)and the motor cycle, which was kept (sic)were not seized by him. As for Satish life as has been stated, according to the findings recorded by the doctor, he sustained bullet injuries and wound of entry was behind mandible on left side of the neck. The wound of exit was extending from neck to right side of the cheek. While giving due consideration of the finding of the doctor and also the ocular testimony of the witnesses, the trial Court has given very sturdy and weighty reasonings and has rightly come to the conclusion that all these depend on recollection of the memory, observations made by the witnesses and their reproduction in Court which may vary and on this score we endorse our findings on the observations made by the Court below in giving due consideration to the oral testimony of the witnesses.

True it is that the witnesses would state about enmity between the parties for jalkar matters but that in itself would not negate the good and positive evidence which saddles some of the Appellants with the charges for which they were made answerable at trial. Though some copies of the sale deeds were sought to be brought on the record, that would not appear to be vital on the facts of the case, in negation of the prosecution evidence. True it is that the blood stained earth and also remains of cartridges seized from the place of occur-rence were not sent for chemical examination but on this score too we find that these are petty details which did not affect the broad features of the prosecution case. That apart, for lapses, on the part of the Investigating Officer, the prosecution would not suffer.

Our attention was also drawn to the statements made by Rani Devi (P.W. 15) about miscreants having put galmochha on their face and on this score it is urged that identification of the Appellants was not possible. But contention raised at Bar on this score too was bereft of probative value regard being had to the fact that the Appellants were none else but the neighbours and that apart, even in dim light, identification of known person was not a remote possibility and that apart, no such evidence was placed on the record to suggest that there was concealment of entire feature of the Appellants to rule out total identification of them.

Exoneration of Wakil Mahto, Suresh Mandal and Gonwa Mandal would not operate adverse to the complicity of the Appellants against whom the prosecution has led clinching and positive evidence. This fact also cannot be lost sight of that once the prosecution has placed a case before the Court, the broad feature had to be taken into consideration and not that the Court has to pick up some minor variations which did not befog the real issue. While considering the identification of the Appellants, we have noticed that the existence of lantern was neither stated in the first information report nor in the evidence of the witnesses. However, the trial Court has taken into consideration that as the incident took place at about 7 p.m., identification from close range by P.Ws. 13 and 15 would not negate the prosecution case about identification of some of the Appellants and on this score also we hold the view that identification of some of the Appellants cannot be questioned. Non-examination of some of the persons who reside in the same vicinity would not introduce any legal or serious infirmity in the prosecution case for the simple reasons that when the occurrence took place at the house, the house inmates were the best witnesses. However, when close relations were the witnesses, the prosecution required to be taken by the Court was that their evidences were not trained and while rejecting the testimony of Sushila Devi (P.W. 14), we find that Raj Kumari Devi (P.W. 13) and Rani Devi (P.W. 15), being house inmates, deserve all credence. They were inside the house. Rani Devi (P.W. 15) was cooking meal inside (sic) house when she came out of the house (sic) the sound of firing and noticed the incident Similar was the case with Raj Kumari Devi (P.W. 13) as shortly after she reached(sic) house from the house of Dineshwa Mahaldar, she noticed the incident. Thougt(sic) a lot of questions were put to the witnesses(sic) by the defence, that would not discredit the witness to be an ocular witness as she(sic) witnessed the entire incident shortly after reaching the house. There has been(sic) sistent narrations made by the witnesses(sic) that while Satish Mahaldar was sitting oil chair outside the house and Jitan (sic) talking with other family members at verardah(sic) of the house, while Satish Mahaldar sustained bullet injuries outside the house, Jitan sustained bullet injuries in his bid to(sic) go inside the house of the passage and on(sic) consideration of these evidences, the post possibility of Raj Kumari Devi (P.W. 13) being(sic) ocular witness is not open to question. A majority of witnesses had turned hostile the State, even clinching evidence of other witnesses cannot be rejected on that score(sic) alone.

However, we have noticed soon(sic) disturbing features, which cannot be to(sic) sight of. Though Raj Kumari Devi (P.W. 1)(sic) identified the Appellants and others in Co(sic) she stated about complicity of only(sic) Mahaldar as the assailants of (sic) Mahaldar without disclosing the assailant of Satish Mahaldar. It was Salamat Mian who was shown to be assailant of Satish Mahaldar and once evidence of these he(sic) witnesses was taken into consideration to find that even complicity of Salamat Mian gested in the evidence of P.W. 15)(sic) Devi was conspicuously wanting in(sic) evidence of Raj Kumari Devi (P.W. 13)(sic) hence there was no corroboration (sic) dence of P.W. 15 about complicity of (sic) from other witness. Though Raj Kumari Devi (P.W. 13) would state also about(sic) (sic)participation, their complicity was con (sic)cusly wanting in the evidence of Ran (sic)(P.W. 15), and on these premises we (sic)raclined to give benefit of doubt to (sic)a alias Shiva Narayan Mahaldar, Biso (sic) Bishwanath Mahaldar and also (sic)amat Mian alias Md. Salamat who are (sic)tiitted of the charges levelled against (sic). However, we uphold the finding re-(sic)ded by the trial Court regarding verdict (sic)guilt against Prabhu Mahaldar and also (sic)itence imposed on him. In the result, (sic)Je Cr. Appeal Nos. 332/95 and 360/95 (sic)allowed, Cr. Appeal No. 349/95 is dis-(sic)ised. Those who have been acquitted, (sic)I also discharged from the liability of(sic), bail bonds.

P.K. Sinha, J.

I agree.