Anil Mahaldar & Ors. v. The State of Bihar

Patna High Court CR. APP (DB) No.143 of 1989 dt.30-01-2013 2 Mahaldar (not examined on account of his death) filed on

13.04.1989 disclosing therein that on 12.04.1979 at about 10.30 P.M. his son Ramdeo Mahaldar aged about 12-13 years was found sitting at the shop of Hari Saw son of Polo Saw at Barari Ghat. When he failed to come to his house in night, he began to search and during course thereof Manmohan Mandal (P.W. 4) divulged that Anil Mahaldar, Kartik Mahaldar, Chhote Ram @ Chhote Kahar, Suresh Ram all of village Barari have taken company of his son Ramdeo Mahaldar and during course thereof they offered some eatable to his son and then thereafter got him disappeared. It has also been narrated that there happens to be animosity amongst Anil Mahaldar and Kartik Mahaldar at one side and he himself at other side and so he apprehended that his son might have been murdered. He had also given physical feature and the apparel wore by him.

3. On the basis of the aforesaid written report, Kotwali P.S. Case No. 20 of 1979 was registered whereupon investigation commenced. During course of investigation as the dead body of Ramdeo Mahaldar was traced out accordingly after completing investigation chargesheet was submitted under Section 302 along with its allied Sections whereunder cognizance was also taken and accordingly, the appellants along with Kartik Mahaldar and Suresh Ram (since acquitted) faced the trial after having the Patna High Court CR. APP (DB) No.143 of 1989 dt.30-01-2013 3 case committed to the court of Sessions.

4. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that of innocence as well as of false implication. There has been complete denial of the occurrence. On this score, one D.W. has also been examined namely Hari Saw.

5. While assailing the judgment of conviction and sentence passed by the learned trial court, it has been submitted on behalf of the learned Counsel for the appellants that the learned lower court did not appreciate the evidence available on the record in its right perspective. It has further been submitted that there happens to be total absence of judicial application during course of appreciation of the evidence contrary to it the manner whereunder learned trial court proceeded suggests mechanical approach. It has further been submitted that there happens to be absence of eye witness in this case and so the case rests upon the theme of circumstantial evidence wherein it was expected at the end of prosecution to interlink its case with only one hypothesis with regard to the guilt of the appellants. When the evidence in the background of the aforesaid settled principle consideration, is found that prosecution has failed to interlink with hence the chain of circumstance is not found to be properly Patna High Court CR. APP (DB) No.143 of 1989 dt.30-01-2013 4 connected. As such, the conviction and sentence recorded by the learned trial court happens to be bad.

6. At the other hand the learned Additional P.P. while sticking with the finding recorded by the learned trial court submitted that true it is that instant case happens to be based upon circumstantial evidence. To have the circumstances interlinked in a chain with all probability suggesting complicity of appellants during commission of the crime, has properly been established by adducing evidence through the witnesses more particularly by P.W. 4 through which complicity of these appellants is found to be fully supported with. It has further been submitted that the learned trial court had elaborately dealt with the pros and cons of the prosecution case in consonance with the evidence available on the record more particularly with regard to P.W. 4 and came to the conclusion finding guilt of the appellants. So submitted that the judgment impugned does not attract any sort of interference.

7. To support its case the prosecution had examined altogether nine P.Ws. out of whom P.W. 1 Dr. Haider Imam Ansari is the witness on the point of post-mortem. P.W. 2 happens to be Brahmdeo Mandal, brother of the deceased who did not claim himself to be an eye witness to occurrence. P.W. 3 Suresh Modi is the witness whose initial status was that of locating the Patna High Court CR. APP (DB) No.143 of 1989 dt.30-01-2013 5 dead body but subsequently at the time of his examination, resiled. P.W. 4 is the nucleus of instant trial. P.W. 5 Anwar Hussain is the witness over animosity. P.W. 6 Janardhan Thakur and P.W. 7 Suchit Lal Ghosh are the inquest witnesses who also resiled during their examination. In likewise manner happens to be P.W. 8 Ram Baran Yadav, seizure list witness. P.W. 9 is I.O. Jitendra Narain Sharma. Side by side also exhibited Ext. 1 post-mortem report, Ext. 2 series signature of witnesses over inquest as well as seizure list, Ext. 3 formal FIR, Ext. 4 inquest report and Ext. 5 seizure list.

8. After hearing both the sides as well as going through the lower court record it is apparent that instant case rests upon the theory of last seen. None of the witnesses save and except P.W. 4 Manmohan Mandal stood on this score nor have they claimed themselves to be the witness of last seen. P.W. 2, Brahmdeo Mandal, own brother of deceased also came to know from the mouth of P.W. 4 Manmohan Mandal. Therefore it looks pertinent to have the evidence of P.W. 4 at the first glance. P.W. 4 had deposed that he happens to be an employee under Hari Saw. On

12.04.1979 at about 10.30 P.M. while he was engaged in preparing Puri and Jalebi as ordered by the customer, deceased Khokha came to his shop and slept over bench. Subsequently Anil Mahaldar and Chhote Ram @ Chhote Kahar came and took him away along with Patna High Court CR. APP (DB) No.143 of 1989 dt.30-01-2013 6 two unknown persons who came out from the shop of Chhote towards river side (Dariya). Since thereafter he did not meet with Khokha. On the following morning Jagdish Mahaldar (informant) came to his place and enquired from him over which he disclosed that he had seen the Khokha. On his further query he disclosed that Anil Mahaldar and Chhote Ram @ Chhote Kahar along with two unknown persons took him away on the pretext of taking him to his house. Subsequently his dead body was recovered from river the Ganges. During cross-examination at para-6 he had accepted his house in front of house of Khokha and further presence of house of Khokha west to the shop of Hari Saw. That means to say he happens to be next door neighbour of deceased. He had not deposed that he had not gone to his house in the night. He had not disclosed that P.W. 2 Brahmdeo Mandal had approached him during course of searching Ramdeo Mahaldar nor he had deposed that he had said anything to Brahmdeo Mandal with regard thereof. In the aforesaid background the evidence of P.W. 2 Brahmdeo Mandal having based upon the information furnished by P.W. 4 Manmohan Mandal has become worthless.

9. Because of having the presence of dead body of deceased Ramdeo Mahaldar and further having not been controverted on this very score, even becoming volte-face to the Patna High Court CR. APP (DB) No.143 of 1989 dt.30-01-2013 7 prosecution by the inquest as well as seizure list witnesses that means to say P.W. 3, P.W. 6, P.W. 7 and P.W. 8 is not going to anyway adversely affect upon the prosecution case so far death of deceased is concerned. P.W. 5 Anwar Hussain had deposed over theme of animosity relating to non-handling over of camera away from the disclosure made in the written report but even then, it is not going to have an adverse impact because of the fact that the informant had already shown his suspicion in the background of animosity.

10. Coming to the evidence of P.W. 1 Dr. Haider Imam Ansari, who had conducted post-mortem over the dead body of Ramdeo Mahaldar on 15.04.1979 at about 11.00 A.M. and found one ligature mark around the neck 1/2” wide. As expected on dissection the underlying tissues were found contused extending up to tracheal. The aforesaid injury has been identified to be the cause of death by stamping asphyxia on account of strangulation that could have match with suggestion of the prosecution having rope encircling around the neck tightly. The fluid was found in the stomach measuring four ounce. In the opinion of the doctor time elapsed since death was about 3 – 4 days from the time of conduction of post-mortem.

11. If the time is calculated from 15.04.1979 at Patna High Court CR. APP (DB) No.143 of 1989 dt.30-01-2013 8

11.00 A.M. it comes within 11.04.1979 to 12.04.1979 11.00 A.M. having difference of at least 12 hours. The reason best known to the prosecution, there was no sincere effort to cover the gap nor there happens to be any sort of explanation on behalf of prosecution to patch up the same. Therefore the improbability of the prosecution version with regard to manner of occurrence has crept up on account of evidence of P.W. 1, the doctor which completely overturn the prosecution story with regard to manner of occurrence more particularly negativiting the theme of last seen.

12. The elementary theory relating to cases based upon last seen theme is that there should be proximity of time in between so that the others have got no opportunity to venture in between. As referred above, from the evidence of P.W. 1, neither the prospect of last seen theory nor the proximity is supported with the fact that presence of opinion of P.W 1 completely demolished the prosecution version as well as authenticity of the evidence of P.W 4.

13. Not only this, it is also evident from the lower court record that appellant Anil Mahaldar who was examined on 2nd December 1988 had shown his age to be 24 years while the court had estimated his age as 26 years and in the aforesaid background when his age is calculated, it comes to near about 17 years. As per Patna High Court CR. APP (DB) No.143 of 1989 dt.30-01-2013 9 amended Section 7A of the Juvenile Justice Act, the plea on this score happens to be tenable. It appears from the judgment impugned that the learned trial court had slipped the issue of having prima facie material available on the record to proceed in accordance with J.J. Act and instead thereof inflicted sentence of rigorous imprisonment which happens to be non-permissive.

14. Thus, after crystallizing and analyzing the evidences as available on the lower court record it is evident that the prosecution could not be able to substantiate its case beyond all reasonable doubt. Consequent thereupon judgment of conviction and sentence recorded by the learned trial court is set aside. The appeal is allowed.

15. Both the appellants namely Anil Mahaldar and Chhote Ram @ Chhote Kahar who are on bail are discharged from its liability. (Shyam Kishore Sharma, J.) (Aditya Kumar Trivedi, J.) Patna High Court, Patna Dated 30th of January, 2013 KKSINHA/- N.A.F.R.