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1969 Supreme(SC) 202
SUPREME COURT OF INDIA
R.S.Bachawat : S.M.Sikri : V.Ramaswami
Chottan Mahton
Versus
State Of Bihar
Case No. : 200 of 1966
Date of Decision : 4/24/69
Headnote:
Indian Penal Code, 1860 - Section 396 and 304 - Dacoity – Appeal Against Conviction - At about midnight a number of persons committed a dacoity in house Of (P. W. 5) - Held, They made futile attempts to allege some sort of enmity with Budhan or his relations - Appellant also alleged some sort of enmity with chaukidar - It would thus appear that five persons who were named or mentioned in first information report by description were not so mentioned through instrumentality of Police Inspector as was argued on behalf of appellants but names were surely given out by inmates of house, namely, P. Ws. 1 and 5, to chaukidar who then got their names mentioned in first information report - Another witness relied on by High Court is, P. W. 1. He was with his brother who was shot dead - He saw appellant on roof firing - He also recognised other appellants among other dacoits – Court was taken through relevant parts of his evidence – Court is unable to say that High court should not have placed reliance on his evidence - Learned counsel contends that on facts as found by High Court conviction under Section 396, Indian Penal Code, is not sustainable as 12 persons out of 16 committed to Sessions have been acquitted - This point does not seem to have been argued before High court - Learned Additional Sessions Judge had however found that accused along with others numbering more than sixteen committed dacoity in house of Budhan - If this finding is accepted, conviction under Section 396 was not wrong - But as there is no such finding by High Court, Court convert the conviction to one under Section 304, 1.P.C. but maintain sentences awarded by learned Additional Sessions Judge and maintained by High court – Appeal dismissed.
S.M. SIKRI, J.
(1) THIS appeal by special leave is directed against the judgment of the Patna High court dismissing the appeal filed by the appellants before us and confirming their conviction by the learned Additional Sessions Judge, Patna, under Section 396, Indian Penal Code
(2) THERE is no doubt that at about midnight between 16/03/1958 and March 17, 1958, a number of persons committed a dacoity in the house Of Budban Gope (P. W. 5) in village Mehtarwan about four miles from police station Chandi in the sub-divifion of Biharsharif, District Patna. In their dacoity Mangal Gope, brother of Budhan Gope, was killed by gun shot injury and Budhan Gope and his daughter Dakho Kuer (P. W. 6) were severely injured. Various kinds of properties were looted by the dacoits, including ornaments, clothes, utensils, etc. First Information Report was lodged at the police station by Sukhu Chowkidar, P.W. 10 at 3 a.m. the same night, i.e., on 17/03/1958. He stated in the first information report that on hearing loud sound of gun firing coming from the west side of the village and on hearing from one Tilakdhari Dusadh that dacoits had come, he went near the house of Budban Gope. He found Mangal Gope, brother of Budhan Gope, fallen near the eastern corner of the house of Ramlal Mahto. Then he also found Budhan Gope and his daughter Dakho Kuer injured besmeared with blood and crying. He stated that he learnt from Budban Gope that "about 15 dacoits, armed with lathi, gadasa and gun raided his house and committed assault with lathi and gun, as a result of which (raid) his daughter Dakho Kuer had been injured by gun shot of the dacoits, and that they (dacoits) assaulted him (Budhan) with lathi, on the Chhat of his house. The (Budhan) also faced the dacoits with a Kori (piece of bamboo)". Sukhu Chowkidar fur- ther stated in the first information report that Budhan Gope told him that "amongst the dacoits he recognised Chhotan Mahto, son of Nekhu Mahto re- sident of Amraura, armed with a gun, Kroo Mahto, Sohrai Mahto and the two sons of Shamlal Chamar, residents of Berwan P. S. Ghandi, District Patna armed with lathis and gadasas and they took away clothes ornaments, cash etc. from his house".
(3) IT will be noticed that three appellants are named in the first infor- mation report and the fourth appellant is mentioned as the son of Shamlal Chamar. Sudhan Gope in his evidence before the Additional Sessions Judge gave a few more details and he added the name of Ram Prasad, who was also known as doctor, in this manner :
"ONE dacoit said, see, rascal is coming, assault him. At this Ram Prasad fired the gun from upstairs (Kotha). Thereafter I heard sound of weeping. After Ram Prasad, Chottan fired the gun, second time."
(4) WE may mention that Ram Prasad was one of the 16 persons who were committed to stand trial before the Additional Sessions Judge, but he was acquitted being given the benefit of doubt. We have mentioned this fact because the learned counsel for the appellant has strongly urged that the in- vestigating officer, Inspector Madan Mohan Prasad, P. W. 14, had deli- berately made the witnesses include some of the persons with whom he did not have cordial relations. It is said that on 20/02/1958, a public meeting was held at Kachaharis, two miles from Mehtarwan, and Dr. Ram Prasad had addressed the meeting and various accusations were made against Madan Mohan Prasad even though he was present at the meeting, and it is on that very day that Madan Mohan Prasad sent a report against Chottan and Ram Prasad, stating that "Chottan took part in dacoity and he was a leader of dacoits, and that Ram Prasad was also an important figure of this gang". The learned counsel says that we should view the evidence very strictly and in such cases indeed it is difficult to separate the chaff from the grain.
(5) IN our opinion both the learned Additional Sessions Judge and the High court have viewed the evidence with care and w
