Uday Mahto vs The State Of Bihar

Heard Ms. Shushmita Mishra, learned Amicus Curiae for the appellants and learned APP for the State.

This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 10.02.2004 and 11.02.2004 respectively, passed by the learned Additional Sessions Judge (Fast Track Court No. I), Aurangabad in Sessions Trial Nos. 296/1997, 83/2003 (arising out of Complaint Case No. 779/1996), whereby and whereunder the appellant has been convicted under Sections 307 of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’) and 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for ten years.

Initially, the fardbeyan of the informant, Babu Lal Yadav (PW-4), was recorded at the Government Dispensary, by Haspura S.I., S.B. Ram, on 21.06.1996 at about 2:15 a.m. On the basis of the said fardbeyan a Formal First Information Report (hereinafter to be referred as “FIR”) bearing Haspura P.S. Case No. 0037/1996 was instituted on 21.06.1996 against 20-25 unknown persons.

The short facts of the case is that the informant, Babu Lal Yadav, in his statement, recorded on 21.06.1996 at the Government Hospital, Haspura, discloses that in the night of 20/21.06.1996, while he was sleeping on the roof of his house along with Ram Awadh Yadav, the son of his brother-in-law, they woke up on hearing some noise coming from the main door of the house. On looking down, they allegedly saw about 20–25 persons gathered near the door. The informant and Ram Awadh Yadav started pelting small pieces of bricks at them from the roof, whereupon, the miscreants flashed two torches and one of them fired a shot, which hit Ram Awadh Yadav in the stomach. It is further alleged that upon hearing the sound of firing, the villagers woke up and raised an alarm, whereafter the miscreants, some of whom were armed with weapons, fired another shot and fled towards the village.

After investigation, a final report was submitted by the investigating officer in this case on 28.09.1996 stating the case as “true but no clue.” However, a protest petition was filed by the informant (PW-4) which was converted into Complaint Case bearing Protest-cum-Complaint Case No. 779/1996. Upon examination of the complainant on solemn affirmation and examination of inquiry witnesses, cognizance was taken on 17.02.1997 by the learned Judicial Magistrate 1^st Class, Aurangabad, against the accused persons including the present appellant, under Sections 395, 397 of the IPC and 27 of the Arms Act. Thereafter, the case was committed to the Court of Sessions on 03.09.1997 and was subsequently transferred to the Court of 2^nd Additional Sessions Judge, Aurangabad for trial.

Further, charges against the appellant were framed on 21.07.1998 under Sections 395, 397 of the IPC and 27 of the Arms Act to which he pleaded not guilty and claimed to be tried.

The learned Trial Court upon appreciation and scrutiny of the evidence adduced during the trial, found the appellant, Uday Mahto, guilty under Section 307 of the IPC and 27 of the Arms Act while other two accused persons, Ramashanker Mahto and Ramguru Mahto were acquitted, as the prosecution failed to prove charges levelled against them beyond reasonable doubt.

The prosecution, in order to substantiate its case, has examined altogether seven witnesses and exhibited several documents, while no evidence has been adduced by the defence. The details of the prosecution witnesses and also the documents exhibited on their behalf are mentioned hereinbelow in a tabular form:

Statement of the accused persons including the appellant was recorded on 12.12.2002 under Section 313 (then section 364) of the Code of Criminal Procedure (hereinafter to be referred as “Cr.P.C.”), and the case of the defence is complete denial of the occurrence claiming themselves to be innocent.

Ms. Sushmita Mishra, learned Amicus Curiae has submitted, at the outset, that originally FIR was instituted on the basis of fardbeyan of the informant which resulted into the final form and thereafter, the protest petition filed by the informant was treated as Complaint. It has further been pointed out that there are material discrepancies with regard to the manner of occurrence inasmuch as, in the fardbeyan the informant (PW-4) has stated that while he was sleeping on the terrace of Ram Awadh Yadav (PW2), on hearing knock at the main door both of them woke up and identified accused persons in the light of torch but PW2 in his statement u/s 164 Cr.P.C., given after regaining consciousness i.e., after four days of the said occurrence, has stated that he woke up to attend nature’s call and saw dacoits (accused persons) coming from the southern side of the street. Further, he has stated that Uday Mahto (appellant) was having gun in his hand and has stated that “pahchan liya humko maaro isko.” This fact is self-indicative that material improvisation has been made in the deposition as no such fact finds any mention in the fardbeyan of PW4. It was thus contended that the delayed and subsequent version of PW2 suffers from material contradiction and does not inspire confidence.

It has been further submitted by learned amicus curiae that although, the FIR was lodged against 20-25 unknown persons but as a matter of fact, only three accused persons including the appellant were identified in the flashlight of torch which was allegedly carried by the accused themselves. The circumstances surrounding such identification, renders it highly doubtful, indicating false implication with due deliberation in a planned manner with an ulterior motive.

It has further been submitted that no independent witnesses have been examined by the prosecution, rather the witnesses who have been examined are either related or interested witnesses. The case of Krishna Chand Vs. State of Himachal Pradesh reported in (2018) 1 SCC 222 has been referred to contend that in case of non-examination of independent witnesses, greater circumspection is required and other material evidence needs to be scrutinized with caution. Further, the injury of the injured persons has not been duly proved as the doctor has not been examined in the present case and the formal witness (PW7) who has proved the injury report of three injured persons namely Nand Kishore Yadav, Ram Awadh Yadav and Rameshwar Yadav, is merely a clerk and therefore, his evidence cannot be treated as sanguine in absence of the author of the injury reports. Reference has been placed upon the case of Vijendra Vs. State of Delhi reported in (1997) 6 SCC 171.

The conviction u/s 307 of the IPC has also been assailed on behalf of the appellant on the ground that while the allegation of the prosecution is that the appellant, Uday Mahto was armed with pistol, who shot and hit Ram Awadh Yadav (PW2) in stomach but neither the said pistol nor any empty cartridge has been seized from the place of occurrence and as such, no seizure list or any ballistic report has been brought on record, adding to the doubtful nature of the prosecution case, as held in the case of Munna Lal Vs. State of UP reported in (2023) 18 SCC 661. It has also been argued that there is no seizure with respect to torch, clothes, etc. and further on account of non-examination of the Investigating Officer, no other objective evidence has been placed on record. Thus, neither the place of occurrence is proved nor the conviction of the appellant u/s 307 of the IPC is sustainable in the eyes of law and as such, the judgment of conviction passed by the learned Trial Court is perverse and is therefore, liable to be set aside.

Per Contra, Ms. Anita Kumari Singh, learned APP for the State has submitted that the testimony of Ram Awadh Yadav (PW-2), cannot be discarded as he is an injured witness as well as a competent witness, whose testimony carries greater evidentiary value. Further, it has been submitted that the injury report corroborates the allegations made in the FIR inasmuch as, the injury is caused by firearm and the nature of same is stated to be grievous. Also, considering the nature and seriousness of injury, the injured person (PW-2) was referred to the Hospital in Gaya, thereby lending support to the prosecution case. As such, it is submitted that the judgment and order of conviction and sentence does not warrant any interference.

I have perused the impugned judgment of the learned trial court, the entire materials on record and have considered the rival submissions made by the learned counsel for the appellants as well as the learned APP for the state.

The focal point for consideration now is as to whether the prosecution has been able to bring home the charges levelled against the appellant beyond all reasonable doubts so as to sustain the conviction and the evidence on record now needs to be analysed and examined for the said purpose.

It appears from the analysis of the evidence, that out of seven prosecution witnesses, five witnesses being PW1, PW2 (injured witness), PW4 (informant himself), PW5 and PW6, have all supported the prosecution case. However, PW1, PW5 and PW6 are relatives of the informant and on hulla, they reached the place of occurrence i.e. the house of the informant and thus they do not appear to be the eye-witnesses of the occurrence. Further, PW3 (Judicial Magistrate) and PW7 are formal witnesses.

The evidence of PW1, PW5, and PW6 reveals that they came to the place of occurrence i.e., the house of Babulal Yadav (informant), upon the sound of gunshot/alarm being raised and saw the dacoits fleeing away. These witnesses have stated in their depositions that they have neither seen the face of any accused persons nor the person who fired upon Ram Awadh Yadav (PW2) and it was PW2 himself, who after regaining his consciousness after four days of the said occurrence, disclosed the names of three accused persons, including the appellant, by stating that the appellant fired upon him. Is is also noticed that these witnesses have not given any statement before police earlier. Moreover, P.W.-1 in his deposition, disclosed that two persons namely Rameshwar Yadav and Nand Kishore Yadav also received injuries during clash with dacoits, but these persons were never examined by the prosecution.

PW3, Shri Madhusudan Tiwari, then posted on the post of Judicial Magistrate, First Class, Aurangabad had recorded the statement of the injured witness, Ram Awadh Yadav (PW2) u/s 164 Cr.P.C. In his cross-examination he has stated that he has given time to the witness (PW2) for reflection. PW7, Rohit Kumar Singh is also a formal witness, who identified the handwriting and signature of Dr. Yogendra Prasad Bhagat (NE) on the injury report. This witness also identified the handwriting and signature of Ram Babu, S.H.O. Haspura, on the FIR and Fardbeyan. In the cross-examination, this witness has stated that the said Fardbeyan/FIR was not written in front of him and he is not personally aware of this case.

Ram Awadh Yadav, PW2, is the victim himself, who has narrated that he along with the informant, was sleeping on the roof of the house of the informant. He woke up for attending the call of nature and in meantime he heard some noise at his door. While this witness switched on his torch he saw about 20-25 persons standing at his door, out of whom he identified only three persons, namely, Uday Mahto (appellant), Ramashankar Mahto and Ramguru Yadav and the appellant (Uday Mahto) fired upon him which hit in his stomach. This witness further stated that after 2-4 days of the occurrence, he regained his consciousness at Gaya Medical Hospital and that he was admitted there for about 15 days, whereafter he came to his house and the police took his statement at his home. In the cross-examination, this witness stated that he was sitting in north direction of the roof at the time of urinating, having torch in his hand and the bullet was fired from the street which is at south direction, which hit at his urinatory tract. He further stated that at the time of firing, his uncle (fufa) i.e., Babu Lal Yadav (PW4) was sleeping.

Babu Lal Yadav (informant), examined as PW4 has stated in his deposition that he was sleeping on his roof and upon hearing some noise coming from the main door, he woke up and saw his ‘Sarbeta’ (PW2) looking down onto the street in torchlight and in the meantime, one bullet was fired which hit PW2 in his stomach. This witness further stated that he had seen 20-25 persons present at his door and on seeing them, he even started pelting some pieces of bricks upon them, whereafter they fled away. During course of fleeing away, they also assaulted two villagers by means of lathi. He further narrates that the injured, PW2, had disclosed name of the three accused persons, including that of the appellant, who fired upon him, after four days of the occurrence, when he regained his consciousness. In the cross-examination, this witness has admitted that he did not see who had fired upon PW2. He has also stated that only one bullet was fired. This witness denied the suggestion that due to a prior dispute, he has deliberately given the name of three accused persons including the appellant.

After having examined and analysed the evidence on record, both oral and doccumentary, at the very outset it is noticed that the initial statement of the informant forming the basis of the FIR bearing Haspura P.S. Case No. 0037/1996, resulted in the submission of a final form finding no clue in the case leading to the obvious inference that during the entire investigation, no materials transpired against the appellant to indicate his complicity in any manner. As a matter of fact, the case only proceeded on a protest petition filed by the informant, which was treated as a complaint, after acceptance of the final form submitted by the police.

The implication and the subsequent conviction of the appellant is based upon the alleged identification made by the injured, PW-2 and the disclosure of the said names of the appellant and two others to the informant (PW-4). It is now to be tested as to whether the testimony of PW-2 is credible enough to place reliance upon the same for basing a conviction. It has been gathered from the evidence and the other materials on record that no names of miscreants were indicated in the FIR and it is only four days after the date of occurrence, that the name of the appellant, along with two others, surfaced through the disclosure made by PW-2 before other witnesses stating about their involvement with specific allegation against the appellant of resorting to firing. Thus, the evidence of PW-2 (Ram Awadh Yadav) has to be subjected to close scrutiny to test the veracity of his statement.

It is an admitted fact, even by the deposition of PW-2, that the alleged occurrence took place at the dead of the night when all were sleeping and while he had woken up for urinating on the roof of his house he had seen about 20-25 persons, out of which he allegedly identified the present appellant and two others. However, the direction in which he was sitting, as disclosed in the cross-examination makes any identification by him highly doubtful as he has stated that the bullet was fired from the street which is at the southern side while he was sitting in the north direction of the roof. Further, the testimony of the informant (PW-4) is not consistent with the evidence of PW-2, in as much as, he has stated that the bullet was fired at PW-2 when he was looking down onto the street finding 20-25 persons, on whom he even pelted some pieces of bricks whereafter they fled away. It is strange that the informant who claims to have been pelting stones from the roof on the miscreants, could not identify anyone, whereas the injured PW-2 who was in a sitting position when bullet was fired at him, revealed the names of three persons after regaining consciousness, i.e.; after four days of the said occurrence.These facts indicate that there are some glaring inconsistencies and contradictions between the statements of the injured PW-2 and the informant (PW-4), which are material in nature.

Another fact which gets revealed from the evidence of PW-2 is that the bullet had hit at his urinary tract when he was sitting for urination, whereas the informant (PW-4) has deposed that the bullet had hit PW-2 in his stomach. The injury report of the injured PW-2 (Ext-4/1) is indicative of the fact that he has sustained one firearm injury in his stomach. Now, the injury report itself is not free from doubt as the author of the said injury report, Dr. Yogendra Prasad Bhagat, has not been examined and in his absence the authenticity of the said injury report is not established, especially in the backdrop of the fact that the same has been proved by a clerk (PW-7), who is not a competent witness to either identify the handwriting of the doctor or to comment upon the nature of the injury. It is well settled that in the absence of the author or maker of a document, the document itself may get formally proved, but the contents thereof, especially the opinion part is not established. Thus, the non-examination of the doctor in the present case is a relevant fact to be taken into consideration for the purposes of assigning any conclusive nature or finding to the injuries received by PW-2.

This court has also noticed the fact that although, it has been admitted in the evidence of the witnesses including PW-2 and PW-4, that the injured PW-2 was taken to Gaya Medical Hospital for treatment, no chit of paper has been brought on record from the said hospital in the form of any prescription, any other treatment record or even any name of the treating doctor, to lend support to his treatment and the factum of his regaining consciousness at the said hospital after four days, when he allegedly made the disclosure of the name of the appellant and two others. The informant (PW-4) has rather clearly stated in his deposition that when PW-2 was giving his statement in the hospital, neither the doctor nor any nurse or compounder were present.

The prosecution has not only failed to examine the doctor in the present case but has also deliberately withheld two other witnesses namely, Rameshwar Yadav and Nand Kishore Yadav who, according to the evidence of the witnesses also got injured in the said incident and their injury reports (Exts-4 and 4/2) were also proved by the formal witness (PW-7). The non-examination of these material witnesses also speaks volumes about the reliability of the prosecution case with respect to the complicity of the appellant. In this regard, this Court would gainfully refer to the case of Vijay Singh @ Vijay Kr. Sharma Vs. State of Bihar reported in 2024 SCC OnLine SC 2623, wherein Hon’ble Apex Court in Para 24 has held as follows:-

Thus, the non-examination of material witness affects the trustworthiness of prosecution version and leads the Court to draw an adverse inference against the prosecution, as has been held in the cases of Takhaji Hiraji Vs. Thakore Kubersing Chamansing and Ors. reported in (2001) 6 SCC 145 and in Parminder Kaur Vs. State of Punjab reported in (2020) 8 SCC 811.

The next issue which needs consideration is that whether the genesis and the place of occurrence get established in the wake of the fact that the investigating officer of the case has not been examined and no objective evidence to establish the place of occurrence has been brought on record. It has been clearly noticed that despite the case of the prosecution being of 20-25 persons coming to the house of the informant and some resorting to firing, neither any empty cartridge nor any blood-stains or clothes have been seized as there is virtually no seizure list on record, not even formally proved by any other witness in the absence of the I.O. There is no mention, whatsoever, of any other incriminating articles seized or produced from the place of occurrence to lend support to the incident. In spite of the fact that the prosecution has come out with a specific case of brick-batting, no pelted stones, etc were seized and more importantly, the only source of identification, i.e., the torch, has also not been seized or produced. Moreover, there is no independent witness to support the factum of occurrence as against the statement made by the witnesses that a number of villagers had assembled at the place of occurrence, whereafter the dacoits had fled away.

This takes us to the argument that the very identification of the appellant and two others in the dead of the night, with no source of identification having been brought on record, renders the same highly doubtful and suspicious. While the FIR clearly indicates that it was the unknown miscreants who were flashing torchlight, during the trial the story has been developed by saying that PW-2 had even flashed the torch at the miscreants. It is true that if the light of the torch is being flashed by the miscreants themselves, their identification in the said torchlight is not possible or at least very difficult. The new story of PW-2 flashing a torch is only an introduction during the trial and non-seizure of the said torch makes it totally redundant. Thus, the argument made on behalf of the appellant raising serious doubt on his identification in the torch light, assumes significance and has a valid basis. The Hon’ble Apex Court in the case of Tamilselvan Vs. State represented by Inspector of Police, Tamil Nadu reported in (2008) 7 SCC 755 has held that where the accused persons were themselves carrying and flashing torches, it would be difficult to accept that the witnesses could have identified them. The Court observed that, in such circumstances, the light of the torches carried by the assailants would have partially blinded the witnesses, thereby making the identification difficult.

Moreover, it appears from the judgment of conviction that the two other accused persons who were identified along with the appellant being, Ramashankar Mahto and Ramguru Mahto, who also faced trial with the appellant were given the benefit of doubt considering that they were not armed with any specific weapon. The judgement also reveals that while the other two accused were acquitted of the charge u/s 395 of the IPC, it was also held that no case u/s 397 of the IPC is also made out against the appellant as no article was looted from the house of the informant and only a case u/s 307 of the IPC and 27 of the Arms Act was made out, under which charge the appellant was held guilty and was convicted. With the acquittal from sections relating to robbery/dacoity, the very foundation of the case of the prosecution gets crumbled and as a result the entire prosecution case based on the said foundational fact, gets demolished. For a conviction to be held valid u/s 307 of the IPC, there are certain requirements to be fulfilled as held in the case of State of Maharashtra v. Kashirao & Ors^. reported in (2003) 10 SCC 434, and for establishing the same the following ingredients would be required:

ii) the act must be capable of causing death or should be done with the intent to cause death,

iii) the action taken by the accused should be imminently dangerous and no excuse should justify the risk of death of serious injury.

In view of the evidence adduced in this case where no enmity or dispute with the appellant has been admitted, no mens rea or motive can be imputed to the appellant and in the background of the tenor of the deposition that firing was made from a lane/street which hit the injured in his stomach does not make out any case u/s 307 of the IPC or 27 of the Arms Act as against the present appellant. It may also be stated here that the impugned judgment also reveals that the parties had later compromised the case by way of filing a compromise petition in the Court concerned on 18.02.2003.

Taking a comprehensive view of the entire evidence, it is gathered that the prosecution case is replete with several inconsistencies and contradictions which cannot be overlooked, especially the serious infirmity of the prosecution case relating to no case of dacoity or robbery being proved, which was the very foundation of the entire prosecution case, sufficient doubt is created in the mind of the Court and in the background of such infirmities, in my considered view, the appellant is entitled to the benefit of doubt.

Thus, considering the fact that the prosecution has failed to bring home the charges against the appellant beyond all reasonable doubts, the finding of conviction recorded by the Trial Court, in the considered opinion of this Court, is not sustainable and requires interference.

In such view of the matter, the judgment of conviction and order of sentence dated 10.02.2004 and 11.02.2004 respectively, passed by the learned Additional Sessions Judge (Fast Track Court No. I), Aurangabad in Sessions Trial Nos. 296/1997, 83/2003 (arising out of Complaint Case No. 779/1996), is hereby set-aside. The appellant is already on bail and hence, he would be discharged of the liability of his bail bonds, if not required in any other case.

Accordingly, the present appeal stands allowed.

Before parting with the judgment, this Court records its words of appreciation for the learned Amicus Curiae for ably assisting this Court. The Patna High Court Legal Services Committee is directed to pay an amount of Rs. 5,500/-to the learned Amicus Curiae.