Participation in dacoity suffices for liability under Section 396 IPC, even without direct involvement in murder; family members can serve as credible eyewitnesses despite lack of independent testimony.

Reserved on: 14.11.2024 Pronounced On: 21.11.2024 Per Gautam Kumar Choudhary, J . Appellants are before this Court in appeal against the judgment of conviction and sentence passed under Section 396 of the IPC.

2. Informant of the case is Raj Kumar Mahto resident of Village Oriya Kala under P.S. Lesliganj, District Palamau. In the intervening night of 26/27.05.1997, he was sleeping on roof top of his house along with his brothers, Amresh Mahto, Sant Kumar Mahto and sons Ramdhar Mahto and Inder Mahto. At about 12 O’ clock in the night, someone called from outside asking Amresh Jee to come down. When he went there, he saw two persons standing with rifle in uniform and they asked him to call Amresh Jee. He understood that they were extremists and asked Amresh to come down. Amresh addressed one of them as Randhir Bhaiya. They asked him to open the shop to give them medicines.

Thereafter, Randhir Singh blowed whistle on which 40 – 45 extremists in uniform armed with rifle came forward. On the gun point, they asked him to open the cloth and grocery shop. The informant, Amresh, Sant Kumar and his sons were hand cuffed by the extremists, who looted grain, clothes, ornaments, chair, etc. and other valuables. Amresh Mahto was brutally assaulted with green bamboo stick and thereafter, his face, neck was gorged with knife, resulting in his death. Informant identified Anil Mahto, Mundesh Mahto, Sidhnath Mahto, Raj Nath Mahto, Naresh Mahto and Dharm Pal Mahto in the extremist group.

3. The genesis of offence has been stated to be a dispute between Raj Nath Mahto and Amresh Mahto and he had threatened Amresh Mahto.

Since Amresh Mahto had a Public Distribution Shop therefore, Raj Nath Mahto nursed grudge against him. Chowkidar- Chandu Mahli was also assaulted and while leaving, they fired 4 – 5 rounds.

4. On the basis of the fardbeyan, Lesliganj P.S. Case No.43/97 was registered under Section 396 of the IPC against these appellants and other two named and 400–500 unknown extremists. After investigation, two separate charge sheets were submitted against altogether seven accused persons along with these appellants who were jointly put on trial for the offence under Section 396 of the IPC.

5. The learned trial Court convicted these appellants under Section 396 of the IPC and sentenced them to rigorous imprisonment for life.

6. Altogether ten witnesses have been examined on behalf of prosecution and relevant documents have been marked as Exhibit 1 – 5 which includes post-mortem examination report, fardbeyan, formal FIR and signature on seizure list. Statement of the accused persons were recorded under Section 313 of the Cr.P.C. Defence is of innocence. Four defence witnesses have also been examined.

7. Learned counsel on behalf of the appellants submits that the medical evidence does not corroborate the ocular evidence. As per the witnesses, who claimed themselves to be the eye witnesses stated that the deceased was assaulted on the neck and other parts of the body by sharp cutting weapon, but the Doctor (P.W. 8) only found laceration on the neck and ruled out that the same was caused by sharp cutting weapon, as it was possible by hard and blunt substance like lathi and kacchra (raw bamboo). He further submits that the entire occurrence had taken place at night in the village, but none of the independent witnesses of the village have been produced as witness by the prosecution, and only the family members of the deceased have deposed before the Court.

8. It is further submitted that there was no source of identification as it was a dark night. Further, the Public Distribution Shop and the other shop of the deceased, were looted by these appellants, but surprisingly none of the looted articles were either recovered from the possession of these appellants or from anyone.

9. The I.O. has also not been examined which has caused prejudice to the appellants, as the place of the occurrence and the fact of the commission of dacoity has not been corroborate