Gahnu Mahto vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 479 Jhar

                                               Cr. Appeal (D.B.) No. 341 of 1993 (P)

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
        Criminal Appeal (D.B.) No. 341 of 1993 (P)
(Against the Judgment of conviction dated 25.06.1993 and Order of
sentence dated 28.06.1993, passed by the Additional District &
Sessions Judge-II, Godda, in Sessions Case No.12 of 1993 / 6 of 1993).
                           -------------
1. Gahnu Mahto, son of Late Kishun Mahto
2. Vipin Bihari Mahto
3. Bhim Prasad Mahto
4. Arjune Prasad Mahto
           All sons of Gahnu Mahto
5. Lakhiram Mahto, son of Late Shivu Mahto
6. Radhika Mahto, son of Late Fulchand Mahto
7. Ram Prasad Mahto, son of Late Raghu Mahato
     All residents of village Dhankaul, P.S. Thakur, Gangti,
(Meherma) District Godda.                ... ...    Appellants
                             Versus
The State of Bihar (now Jharkhand) ...       ...    Respondent
                            --------
For the Appellants : Ms. Anushka Sharma, Advocate
For the Resp.-State : Mr. Satish Prasad, A.P.P.
                            --------
                            PRESENT
     HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
         HON'BLE MR. JUSTICE SUBHASH CHAND
                             -------
C.A.V. on 17.01.2023               Pronounced on 30.01.2023

Per Sujit Narayan Prasad, J.

The instant appeal has been preferred under Section

374(2) of the Code of Criminal Procedure against the

Judgment of conviction dated 25.06.1993 and Order of

sentence dated 28.06.1993, passed by the Additional District

& Sessions Judge-II, Godda, in Sessions Case No.12 of 1993

/ 6 of 1993, whereby, the appellants have been found guilty

and convicted for the offences under Section 302 read with

Section 34 of the Indian Penal Code and upon hearing on the

point of sentence, the appellants have been sentenced to Cr. Appeal (D.B.) No. 341 of 1993 (P)

undergo imprisonment for life for the offence under Section

302 read with Section 34 of the Indian Penal Code.

2. It requires to refer herein that the Appellant Nos. 1 and

6, namely, Gahnu Mahto and Radhika Mahto respectively,

have been reported dead and, as such, the instant criminal

appeal on behalf of the Appellant Nos. 1 and 6 stands abated,

as would appear from order dated 11.03.2019 passed in the

proceeding of the instant appeal. Therefore, the appeal is

being pursued on behalf of Appellant Nos. 2, 3, 4, 5 and 7,

namely, Vipin Bihari Mahto, Bhim Prasad Mahto, Arjune

Prasad Mahto, Lakhiram Mahto and Ram Prasad Mahto.

3. The prosecution case is based on the fardbeyan of

Bhukhal Mahto, father of the deceased, given before O/C

Thakur Gangati, Subodh Kumar Jaiswal (P.W.-14) on

24.10.1991 at about 00:30 Hrs. (12:30 A.M. at night),

wherein he has stated that on 23.10.1991 at about 06:30

p.m. accused Gahanu Mahto, Vipin Bihari Mahto, Bheem

Mahto, Arjun Mahto, Lakhi Ram Mahto, Radhika Mahto and

Ram Prasad Mahto had injured his youngest son Upendra

Mahto badly by assaulting with sharp cutting weapon in the

eastern Bahiyar of village Dhankaul.

It has further been stated that at about one hour before

the occurrence, his son Upendra had gone out to see off

Purohit Harihar Pandey up to Banskoula Bandh. At about

7:00 p.m. there was rumour in the village that Upendra has

been murdered. When the informant came to the village, Cr. Appeal (D.B.) No. 341 of 1993 (P)

Thakur Besara (P.W.-3), Birbal Mahto (P.W.-1) and Sanichar

Mahto (Not examined) told him that after seeing Lakhi Pooja

at about 6:30 p.m., when they were coming back home

through eastern Bahiyar they heard the cry of "save save"

upon which all of them ran towards the direction of sound

and saw all the above named accused persons fleeing away.

Out of them, accused Gahanu Mahto was holding Kudal and

Vipin Mahto was holding Khanti. They chased the accused

persons and raised alarm but accused persons succeeded in

escaping. Thereafter, above named three persons came back

to place of occurrence where they found Upendra dead in

injured condition in paddy field. By that time, many villagers

had assembled there. On being informed, the informant along

with other village men, went to the place of occurrence and

found his son Upendra lying dead in paddy field and several

bleeding injuries caused by sharp cutting weapon were over

his head. Upendra‟s dhoti, accused Gahanu‟s tin (used to

water the plant) and a red colour woolen shawl were found in

the nearby area of site of occurrence. It has also been stated

that there was a land dispute with accused Gahanu Mahto

and Radhika Mahto prior to occurrence and accused persons

had given threat of dire consequences several times and that

the because of this the accused persons had killed his son.

On the basis of the fardbeyan, Meherma (Thakur

Gangati) P.S. Case No.147/1991 dated 24.10.1991, was

instituted for the offences under Sections 302/34 of the Cr. Appeal (D.B.) No. 341 of 1993 (P)

Indian Penal Code, against the accused persons Gahanu

Mahto, Vipin Bihari Mahto, Bheem Mahto, Arjun Mahto,

Lakhi Ram Mahto, Radhika Mahto and Ram Prasad Mahto

and investigation was taken up. After investigation, the police

submitted the charge-sheet in the case.

4. After commitment of the case to the Court of Session,

charge was framed against the accused persons for the

offences under Section 302/34 of the Indian Penal Code, and

upon the accused persons‟ pleading not guilty and claiming

to be tried, they were put to trial. However, accused Radhika

has pleaded that on the day when the occurrence took place,

he was suffering from ailment and was taking treatment at

Katihar Hospital. In course of trial, 14 witnesses were

examined by the prosecution, including the I.O. and the

Doctor, who had conducted the post-mortem examination on

the dead body of the deceased. The defence has also

examined one witnesss in this case.

5. Ms. Anushka Sharma, learned counsel for the

appellants has submitted that learned trial court has

considered the testimony of 14 witnesses altogether and

considering the testimony to be trustworthy, has passed the

judgment of conviction but while doing so, the learned trial

court has failed to appreciate that the prosecution has not

been able to prove the charge beyond all reasonable doubt on

the basis of the testimony of P.W.-1 and P.W.-3 which has

been considered to be consistent and corroboration with each Cr. Appeal (D.B.) No. 341 of 1993 (P)

other on the material points as both of them have averred

that at the time of occurrence they were returning home from

Lakhi Mela and heard sound of crying "save save" at the

distance of about 25 yards from the place of occurrence.

Thereafter, they ran in the direction of sound and there when

their light fell on the accused persons, very first time, at that

time accused persons were standing near the dead body and

making preparation for leaving the place of occurrence.

The learned trial court has also considered that when

these witnesses went ahead about 10 yards and raised alarm,

at that time these witnesses and accused persons were facing

each other. Learned trial court, therefore, has admittd that it

was full moonlight night and these witnesses as well as the

accused persons are resident of one and same village and

well acquainted with each other. These witnesses have

identified the accused persons in the full moonlight night

while the accused persons were making preparation to leave

the place and, thereafter, when the accused persons were

running away.

The learned trial court has also considered that these

witnesses have also seen accused Gahanu Mahto holding

"Kudal", while accused Vipin Mahto holding Khanti and rest

bare hand.

The learned trial court, on the basis of nature of injuries

and cause of death, as has been opined by the Doctor, has

found the sufficient evidence to prove the charge against the Cr. Appeal (D.B.) No. 341 of 1993 (P)

appellants but while doing so, the learned trial court has

failed to appreciate the nature of injuries sustained by the

deceased which are in long sized which cannot be given by

Khanti or the Kudal. However, it has been submitted that

Gahanu Mahto was having the Kudal but since he is no

more, as such, no argument is being advanced on the injury

as to whether it was sustained by Kudal or not, rather, the

other accused persons, namely, Appellant No.2 was having

Khanti in his hand, as such, the ground has been agitated

that the nature of injury as has been shown while conducting

the postmortem of the dead body of the deceased cannot be

caused by Khanti.

It has further been submitted that proving of charge

against the other accused persons is also not corroborated

from the testimony of P.W.-1 and P.W.-3 wherein omnibus

allegations have been levelled against Appellant Nos. 3, 4, 5

and 7 since there is no reference of any arms having been

held by Appellant Nos.3, 4, 5 and 7, in view of the specific

allegation levelled against Gahanu Mahto, Appellant No.1,

(now deceased) and Vipin Bihari Mahto, Appellant No.2, who

was having Khanti in his hand.

The learned counsel for the appellants, therefore,

submits that since there is no specific allegation as has been

occurred by so called eye witness, i.e., P.W.-1 and P.W.-3,

deposing against the culpability of the Appellant Nos. 3, 4, 5

and 7 but even then they have been convicted for commission Cr. Appeal (D.B.) No. 341 of 1993 (P)

of offence under Section 302 of the Indian Penal Code.

It has further been submitted that if the testimony of

P.W.-1 is accepted to be true then also by taking into

consideration the nature of injuries, the same cannot be

caused by the arms like Khanti and, as such, the testimony

of the eye witness is not being corroborated from the medical

evidence so far as the nature of injury is concerned.

Learned counsel for the appellants, in the backdrop of

the aforesaid fact, has submitted that the judgment of

conviction and order of sentence passed against the

appellants, therefore, is not sustainable in the eyes of law.

6. Per contra, Mr. Satish Prasad, learned Additional Public

Prosecutor, appearing for the respondent State, has defended

the order passed by the learned trial court by taking the

ground that the learned trial court has considered the

testimony of P.W.-1 and P.W.-3, who, in specific term, have

corroborated what has been stated in the fardbeyan about

the culpability of the appellants and, therefore, there is no

error in the impugned judgment.

It has been submitted that even though there is some

discrepancy in between the testimony of the witnesses with

the medical evidence, the same cannot vitiate the trial.

It has been submitted that specific allegation has been

levelled against the appellants who have murdered the

deceased by giving assault as also there is specific allegation

about holding Khanti by the Appellant No.2 Vipin Bihari Cr. Appeal (D.B.) No. 341 of 1993 (P)

Mahto and other accused persons were also named by the

independent witnesses and if on the basis of the aforesaid

fact, the learned trial court, after taking into consideration

the charge having been framed under Section 302 of the

Indian Penal Code along with Section 34 thereof, has found

the appellants guilty of the offence, the judgment of

conviction cannot be said to suffer from an error.

7. We have heard the learned counsel for the parties,

perused the documents available on record as also the

finding recorded in the impugned judgment and the

testimony of the witnesses as is available in the Lower Court

Record having been called for by this Court.

8. This Court, before proceeding to examine the legality

and propriety of the impugned judgment, deems it fit and

proper to refer the position of law with respect to the

fundamental principle to establish the charge for commission

of offence as it is the bounden duty of the prosecution to

establish the charge so levelled beyond all reasonable doubt

and only then the accused persons can be convicted for

commission of offence, as has been held by Hon'ble Apex

Court in Datar Singh v. State of Punjab reported in (1975)

4 SCC 272 at paragraph 3 which reads hereunder as:-

"3. It is often difficult for courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the Cr. Appeal (D.B.) No. 341 of 1993 (P)

prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the pieces of evidence on which the prosecution chooses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole superstructure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of the prosecution case."

It is, thus, evident that while proving the charge, it is

the bounden duty of the prosecution to prove the charge

beyond all reasonable doubt and only then the person against

whom the allegations have been leveled, is to be convicted.

It is also settled position of law that after considering the

testimony of the witnesses, if two views are possible, the view

which is in favour of the accused person, is to be accepted, as

has been held by Hon'ble Apex Court in the case of

Allarakha K. Mansuri v. State of Gujarat reported in

(2002) 3 SCC 57.

The Hon'ble Apex Court, in the aforesaid judgment has

laid down the principle that if two views are possible and the

trial court has taken one, the High Court should not interfere

in the judgment of the trial court, for reference, paragraph 6 Cr. Appeal (D.B.) No. 341 of 1993 (P)

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thereof requires to be referred herein which reads hereunder

as :-

"6. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In our country it is not a jurisdictional limitation on the appeal court but a Judge- made guideline of circumspection. In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] this Court held: (SCC p. 800, para 7) "7. This Court had ever since its inception considered the correct principle to be applied by the Court in an appeal against an order of acquittal and held that the High Court has full powers to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. The Privy Council in Sheo Swarup v. King Emperor [AIR 1934 PC 227 (2)] negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under Section 417 of the Code. Lord Russel delivering the judgment of the Board pointed out that there was „no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an Appellate Tribunal‟, that no Cr. Appeal (D.B.) No. 341 of 1993 (P)

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distinction was drawn „between an appeal from an order of acquittal and an appeal from a conviction‟, and that „no limitation should be placed upon that power unless it be found expressly stated in the Code‟. He further pointed out at p. 404 that, „the High Court should and will always give proper weight and consideration to such matters as: (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses‟. In Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715] after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court considered the principles laid down in Sheo Swarup case [(1973) 2 SCC 793] and held that they afforded a correct guide for the appellate court's approach to a case against an order of acquittal. It was again pointed out by Das Gupta, J. delivering the judgment of five judges in Harbans Singh v. State of Punjab [AIR 1962 SC 439] :

„In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an appeal court should not interfere with an order of acquittal (vide Surajpal Singh v. State [1951 SCC 1207]; Puran v. State of Punjab [(1952) 2 SCC 454]. The use of the words "compelling reasons" embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words "compelling reasons". In Cr. Appeal (D.B.) No. 341 of 1993 (P)

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later years the Court has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable."

It is also settled position of law that if there is any doubt

about commission of the crime, the benefit is to be given to

the accused persons, as has been held by Hon'ble Apex Court

in Sharad Birdhichand Sarda v. State of Maharashtra

reported in (1984) 4 SCC 116 at paragraphs 162 and 163

which are required to be referred which read hereunder as:-

"162. Moreover, in M.G. Agarwal case [AIR 1963 SC 200] this Court while reiterating the principles enunciated in Hanumant case [(1952) 2 SCC 71] observed thus:

"If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt."

In Shankarlal [(1981) 2 SCC 35, 39] this Court reiterated the same view thus: [SCC para 31, p. 44: SCC (Cri) p. 322] "Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment."

163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an Cr. Appeal (D.B.) No. 341 of 1993 (P)

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accused, the accused is undoubtedly entitled to the benefit of doubt.

... ... ... ... ... ... ... ... ..."

9. This Court, on the basis of the aforesaid principle, is

now proceeding to examine the legality and propriety of the

impugned judgment by which the appellants have been

convicted for commission of offence under Section 302/34 of

the Indian Penal Code and have been directed to undergo life

imprisonment.

It is evident from the prosecution story that the father of

the deceased, namely, Bhukhal Mahto, P.W.-2, has stated in

the fardbeyan that accused Gahanu Mahto, Vipin Bihari

Mahto, Bheem Mahto, Arjun Mahto, Lakhi Ram Mahto,

Radhika Mahto and Ram Prasad Mahto had assaulted his

younger son Upendra Mahto badly by sharp cutting weapon

in the eastern Bahiyar of Village Dhankoul at about 6:30 p.m.

and the deceased succumbed to injuries. It is the specific

allegation levelled in the fardbeyan that the accused persons

were armed with sharp cutting weapon and assaulted the

deceased.

The P.W.-2, informant and father of deceased Upendra

Mahto, in his testimony, has stated that his son Upendra

Mahto died on 23.10.1991 it was full moon night while he

was coming back home through Bahiyar.

He has stated in his deposition that Birbal Mahto and

Shanichar Mahto have informed him that all the accused Cr. Appeal (D.B.) No. 341 of 1993 (P)

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persons had murdered his son in paddy Bahiyar and when

they approached the place of occurrence, all the accused

persons took their heels and when the informant reached to

the place of occurrence, he saw his son lying dead and blood

was spread over the paddy field.

He has further stated that on the same night at about

12:30 Hrs. he went to Police Station and narrated the

occurrence to the Sub-Inspector of Police but Sub-Inspector

of Police neither wrote anything nor came to site of

occurrence in the night. Rather, the Sub-Inspector came in

the morning on next day where the fardbeyan of P.W.-2 was

recorded at his residence which was taken down by the Sub-

Inspector but the same was not read over to him. However,

he made his signature over it.

In cross-examination, he has stated that puja of Lord

Satyanarayan was performed at 4:00 p.m.by Harihar Pandit

of village Pakaria which is situated at a distance of one

kilometer across the river from village Dhankoul.

It was stated that the place where the dead body was

lying is in the south west corner of the "Mela" at a distance

from about 200 yards from the "Mela". The site of Mela is just

adjacent to the house of Raja Kishun Mahto.

He has further stated that at about 7:00 p.m. when

Birbal Mahto and other persons came to inform him, he was

sitting in verandah and after their disclosure, wife of Upendra

Mahto started weeping and then villagers assembled there.

Cr. Appeal (D.B.) No. 341 of 1993 (P)

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Upon this, Mohan Thakur, Babban Thakur, Vijay Mahto and

Chakradhar Mahto came to his house and thereafter, he,

along with other co-villagers including those three persons

who had informed him, went to the place of occurrence at

7:30 p.m. where he found his son lying dead.

He has admitted that proceeding under Section 107

Cr.P.C. between him and accused Radhika Mahto and Vipin

was going on the date of occurrence and also on the date of

recording of the deposition

P.W.-2 is the author of the prosecution story and is the

formal witness.

P.W.-3, namely, Thakur Besra has stated in his

examination-in-chief that after hearing alarm he ran towards

the direction from where the alarm had come and had seen

that Gahanu Mahto was having Kudali in his hand and Vipin

Mahto was having Khanti in his hand.

He has stated that he had rushed to the place of

occurrence and saw there that the blood was oozing from the

head of the deceased Upendra Mahto and he was having

several injuries over his body and was dead.

He has further stated that on alarm several people had

assembled there.

He has been cross-examined in which he has deposed

about the story of occurrence.

P.W.-4 namely, Kaushlya Devi, has stated at paragraph-

2 that she had seen Gahanu Mahto, Vipin Mahto, Bhima Cr. Appeal (D.B.) No. 341 of 1993 (P)

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Mahto, Arjun Mahto, Radhika Mahto, Ram Prasad Mahto and

Lakhi Ram Mahto assaulting the deceased Upendra Mahto.

She has stated that after seeing the occurrence of

assault being given to the deceased Upendra Mahto, she

raised alarm upon this several persons came but she cannot

disclose the name of those persons.

She, in her cross-examination, has stated that after

seeing the incident, she rushed to the house of deceased and

apprised the family members about the murder of the

deceased Upendra Mahto.

It is, thus, evident that P.W.-4 has not disclosed that

which accused was having which arms, as has been stated by

P.W.-3 wherein it has been stated that Gahnu Mahto was

having Kudal and Vipin Bihari Mahto was having Khanti in

their hands.

P.W.-5, namely, Chhedi Prasad Mahto, is the hearsay

witness and he has seen the dead body.

P.W.-6, namely, Mansukh Mahto, is the seizure witness

who has proved the seizure lists which have been marked as

Ext.-2 and 2/1.

Yashoda Devi, has been examined as P.W.-7, who has

stated at paragraph-2 that when she along with Kaushalya

Devi reached to the place of occurrence, she saw that

Gahanu Mahto was assaulting Upendra Mahto with Kudali

and Vipin was assaulting with Khanti. She has stated that

Bhim Mahto, Arjun Mahto, Radhika Mahto, Ram Prasad Cr. Appeal (D.B.) No. 341 of 1993 (P)

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Mahto and Lakhi Ram Mahto were also assaulting.

She has been cross-examined in which she has stated at

paragraph-7 that the accused persons had taken away the

spade (Kudal). She has also stated that the occurrence took

place in the dark night and she had seen the Kudali blow and

Khanti blow being given upon deceased Upendra Mahto.

She has also stated that the blow from Khanti was given

on the head and by Kudali in the back side and at the hand.

She has stated that Birban Mahto, Thakur Besra, Shanichar

Mahto, Deonarayan Mahto, Baleshwar Mahto, Sikandar

Mahto, Chhedi Mahto and Girijashankar Mahto were in the

fair (Mela) and hearing the alarm, they reached to the place of

occurrence.

Bilasi Devi and Babban Thakur have been examined as

P.W.-8 and 9 respectively, who are the hearsay witnesses.

Girija Shankar Mahto has been examined as P.W.-10.

He has stated that he had seen Gahnu Mahto, Vipin Mahto,

Bhim Mahto, Arjun Mahto, Radhika Mahto, Ram Prasad

Mahto and Lakhi Ram Mahto assaulting the deceased and

after seeing him they started fleeing away. He has stated in

his cross-examination that all the accused persons were

assaulting the deceased by surrounding him from all sides

and save and except the deceased there was none.

P.W.-11 Raju Mahto, and P.W.-12 Nagendra Mahto are

the seizure witness who have identified their signatures upon

the seizure list and their signatures have been marked as Cr. Appeal (D.B.) No. 341 of 1993 (P)

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Ext.3 and 3/a respectively.

Dr. Mantu Kumar Tekriwal, who had conducted the

postmortem examination on the dead body of the deceased,

has been examined as P.W.-13, has stated that he had found

following anti-mortem injuries on the body of the deceased:-

(i) A long sharp cut from anterior aspect of right ear to

vertex bone visible 8" x 2".

(ii) A long sharp cut at the posterior aspect of right ear size

6" x 3" bone visible.

(iii) A long sharp cut at occiput more deviated to left 6" x 2"

bone visible.

(iv) A sharp cut at the left temporal region 6" x 2" x bone

exposed.

(v) A sharp cut at right shoulder 2" x 2" x bone visible.

(vi) Fracture of left forearm both radius and ulna.

(vii) Fracture of right thumb.

(viii) Blood clot in right ear.

He has stated that the time of occurrence is 48 hours

from the time of postmortem. He has stated that such

injuries may have been caused by the sharp cutting weapon

such as Gandasa and Farsa, meaning thereby, the incised

wound can be given by sharp cutting weapon. He has stated

that such type of injuries cannot be caused by blunt edge

weapon.

The I.O. Subodh Kumar Jaiswal has been examined as

P.W.-14 who had prepared the inquest report and proved the Cr. Appeal (D.B.) No. 341 of 1993 (P)

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inquest report as also First Information Report.

He has stated in the cross-examination that Birbal

Mahto had not stated before him that he had gone to house

of deceased and had informed Upendra‟s father about the

occurrence.

One defence witness namely Jung Bahadur Singh,

D.W.-1 was examined on behalf of defence who has stated

that accused Radhika Mahto was taking treatment at Katihar

Hospital on the date of occurrence.

10. The learned trial court has considered the testimony of

P.W.-1 and P.W.-3 particularly and corroborating it from the

testimony of P.W.-13 Dr. Mantu Kumar Tekriwal, has passed

the order of conviction.

11. This Court, therefore, is now to consider as to whether

the testimony of P.W.-1 and P.W.-3 can be said to be

trustworthy to establish the charge by taking together the

testimony of the Doctor, P.W.-13.

So far as the testimony of P.W.-1, Birbal Mahto, is

concerned, he has stated about the story of commission of

occurrence by taking the name of the accused persons as

under paragraph-2.

He has stated in his deposition that he has seen the

occurrence, as would appear from paragraph-3, but no such

statement has been given before the Investigating Officer by

the P.W.-1, namely, Birbal Mahto, as would appear from

paragraph-25 of the deposition of the I.O., wherein it has Cr. Appeal (D.B.) No. 341 of 1993 (P)

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been stated that no such statement has been given before

the Investigating Officer by the P.W.-1 and, therefore, the

testimony of P.W.-1 cannot be considered to be trustworthy,

reason being that the Investigating Officer has stated

otherwise in specific term that Birbal Mahto, P.W.-1 has

stated in his deposition that he had narrated about the

incidence by going to the house of Upendra Mahto.

He has also stated that he had not found any Gandasa

and, as such, there is no seizure of the said Gandasa.

Learned trial court has given emphasis upon the

testimony of P.W.-3 wherein it has been stated by him that he

had seen the occurrence of assault having been given by

Gahanu Mahto who was having Kudali and Vipin Bihari

Mahto, who was having Khanti in their hands.

Accused Gahanu Mahto since has died, as such, we are

not discussing about his culpability, however, the culpability

of Vipin Bihari Mahto, Appellant No.2 is being considering

along with other appellants. The specific allegations have

been levelled in the testimony as recorded under paragraph-2

thereof that Vipin Mahto was having Khanti in his hand and

was assaulting the deceased.

Likewise, P.W.-4 has taken the name of appellants, as

would appear from the statement made at paragraph-2 but if

the testimony of P.W.-3 and P.W.-4 will be taken together, it

would be evident that P.W.-3 has deposed about having

Khanti with Vipin Bihari Mahto and has not stated about the Cr. Appeal (D.B.) No. 341 of 1993 (P)

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other accused persons, the appellants herein, about holding

of any arms by them.

While on the other hand, P.W.-4 has stated that she had

seen the occurrence and the accused persons, namely,

Gahanu Mahto, Vipin Mahto, Bhima Mahto, Arjun Mahto,

Radhika Mahto, Ram Prasad Mahto and Lakhi Ram Mahto

were assaulting the deceased Upendra Mahto but from which

weapon the assault was being given by the accused persons

has not been stated.

12. This Court now is proceeding to scrutinize that what is

the basis of conviction of Vimal Bihari Mahto, Appellant No.2.

Admittedly herein, there is no allegation that Appellant

Nos. 3, 4, 5 and 7, namely, Bhim Prasad Mahto, Arjune

Prasad Mahto, Lakhiram Mahto and Ram Prasad Mahto were

armed with any weapon. However, P.W.-4, namely, Kaushalya

Devi, has stated that all the accused persons were assaulting

the deceased but not stated that all the appellants were

armed with any arms like Gandasa, Farsa etc. However, P.W.-

3 has stated that Vipin Mahto, Appellant No.2 was having

Khanti in his hand.

Admittedly, the Doctor has found the incised wounds,

i.e., long sharp cut from anterior aspect of right ear to vertex

bone visible 8" x 2", long sharp cut at the posterior aspect of

right ear size 6" x 3" bone visible, long sharp cut at occiput

more deviated to left 6" x 2" bone visible and sharp cut at the

left temporal region 6" x 2" x bone exposed. Now the question Cr. Appeal (D.B.) No. 341 of 1993 (P)

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arises that the Appellant No. Nos. 3, 4, 5 and 7, namely,

Bhim Prasad Mahto, Arjune Prasad Mahto, Lakhiram Mahto

and Ram Prasad Mahto were having no arms, having not

been stated about the same by any of the witnesses then how

the culpability of these appellants have been found to be

proved by the learned trial court, there is no reason to that

effect in the impugned Judgment.

The conviction of a person warrants that the specific

allegation to be by the deposition of the witnesses and not on

the basis of omnibus allegation since it is the question of life

and personal liberty which is the fundamental right as

guaranteed under Article 21 of the Constitution of India.

13. This Court, therefore, after going through the judgment

passed by the learned trial court, is of the view that no

reason has been assigned proving the culpability of the

Appellant Nos. 3, 4, 5 and 7, namely, Bhim Prasad Mahto,

Arjune Prasad Mahto, Lakhiram Mahto and Ram Prasad

Mahto in commission of crime by taking into consideration

the nature of injury and the reason of death which has been

said to be caused by assault with sharp cutting weapon and

none of the witnesses since has uttered a word that these

appellants were having any arms in their hands, therefore,

according to our considered view, the finding of conviction

against the Appellant Nos. 3, 4, 5 and 7, namely, Bhim

Prasad Mahto, Arjune Prasad Mahto, Lakhiram Mahto and

Ram Prasad Mahto is without any evidence.

Cr. Appeal (D.B.) No. 341 of 1993 (P)

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14. So far as the finding of conviction against Vipin Bihari

Mahto, Appellant No.2, is concerned who has been shown to

have given Khanti blow, the Khanti is a type of instrument

made up of iron rod which is being used for digging the soil

having flat sharp edge at one end. It is about 3 to 4 feet long

in size. The blow given by Khanti will not cause incised

wound, rather, the incised wound will be caused by a sharp

cutting weapon either Farsa, Gandasa or Sword or even by

Kudali (spade).

The injuries, if given by Khanti, the same may cause a

deep injury over the body or if given over the head, the injury

will be said to be given by hard and blunt substance and if

the injury given by hard and blunt substance is there, the

same will not be in nature of incised wound having long

incised as is in the case in hand, as per the medical report

narrated by the Doctor, P.W.-13.

The reference of the injury to be given in the nature of

incised wound find mentioned in Modi A Textbook of

Medical Jurisprudence and Toxicology wherein the

description of incised wound has been given while the assault

if caused by Khanti, will not be in the nature of incised

wound having long incise, for ready reference the aforesaid

description is being referred herein.

"25.5.7 Incised or Slash Wounds

An incised or slash wound is defined as orderly solution of skin and tissue by a sharp cutting Cr. Appeal (D.B.) No. 341 of 1993 (P)

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weapon drawn across the skin. It may either be produced by light sharp cutting instruments such as knife, razor, scissors, or heavy sharp cutting weapons such as sword, gandasa (chopper). axe, hatchet, scythe, kookri or any object such as a broken piece of glass or metal which has a sharp, cutting pointed or linear edge and are mostly intentionally inflicted. The cutting edge of a knife may be completely or partly sharp and partly blunt and the other edge may be blunt, serrated, scalloped or hollow, all these variations affect the shape of the wound."

15. The corroboration which has been considered by the

learned trial court of the testimony of P.W.-3 with the

evidence of the Doctor who had found the injuries anti-

mortem in nature, as referred hereinabove, according to our

considered view, cannot be said to be proper in view of the

fact that the nature of injury found on the body of the

deceased is long incise in nature which cannot be caused

from Khanti which Vipin Bihari Mahto, Appellant No.2, was

having with him.

The position of law although is settled that the ocular

evidence is to prevail upon the medical evidence but the said

principle is said to be applicable if there is corroboration or

there is minor difference in one testimony of ocular witness

and the testimony of the Doctor. But, herein, the testimony

of the Doctor wherein the nature of injury which has been

found is not being matched with the injury which may be

sustained from Khanti blow and, therefore, the non-

consideration of that part by the learned trial court will Cr. Appeal (D.B.) No. 341 of 1993 (P)

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amount to creating doubt regarding the cause of death said

to have been caused by Khanti blow alleged to have been

given by the Appellant No.2, Vipin Bihari Mahto.

16. In the judgment rendered by Hon'ble Apex Court in the

case of Baliraj Singh v. State of Madhya Pradesh reported

in (2017) 14 SCC 291 wherein the Hon'ble Apex Court has

observed by taking into consideration the postmortem report

wherein there was a punctured wound just below the angle

of right mandible over the right side of neck 1″ × ½″ × 3″ and

on dissection, he found that major artery was punctured and

trachea was cut. There was haematoma underlying the whole

side of neck and in the opinion of the doctor, the injury was

caused by a sharp-piercing object. In his evidence, the doctor

(PW 13) confirmed that cause of death was due to excessive

haemorrhage from the punctured wound over the right side of

neck caused by sharp-piercing object and due to punctured

major blood vessel over right side of neck.

The Hon'ble Apex Court has further observed that it has

not been observed that the seized lathi contained any sharp

edges with iron coated. Even it was not sent for examination

of Dr R.K. Dixit (PW 13) to ascertain whether the fatal injury

could be resulted by it. Moreover, the record says that the

blood on the bloodstained cap of deceased seized from the

place of occurrence did not tally with that of the deceased.

The Sub-Inspector who conducted the seizure proceedings

and prepared seizure memo has not been examined by the Cr. Appeal (D.B.) No. 341 of 1993 (P)

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prosecution. The Hon'ble Apex Court although has

considered the settled proposition in criminal jurisprudence

that ordinarily, the value of medical evidence is only

corroborative. It proves that the injuries could have been

caused in the manner alleged and nothing more. The use

which the defence can make of the medical evidence is to

prove that the injuries could not possibly have been caused

in the manner alleged and thereby discredit the eyewitnesses.

In that case the nature of injury, contradiction about the

time of arrival of the witnesses, contradictions between the

ocular and medical evidence, non-examination of the police

officer who conducted seizure and subsequent improvement

by one of the eyewitnesses casts a serious doubt on the

prosecution's case and, therefore, the accused has been

discharged from the criminal liability.

The Hon'ble Apex Court while considering the same has

also put reliance upon the judgment rendered in the case of

Solanki Chimanbhai Ukabhai v. State of Gujarat reported

in (1983) 2 SCC 174 wherein it has been observed that the

medical evidence is only to prove that the injury could not

have possibly been caused in the manner alleged and thereby

discredit the eye witness.

17. Here, in the facts of the given case also, the nature of

injury as has been shown by the Doctor, P.W.-13, is not such

an injury said to be caused by Khanti blow, as has been

alleged to have been given by the Appellant No.2 Vipin Bihari Cr. Appeal (D.B.) No. 341 of 1993 (P)

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Mahto. Therefore, it cannot be said that the prosecution has

been able to prove the charge against the Appellant No.2

Vipin Bihari Mahto beyond all shadow of doubt on the basis

of the reason as referred hereinabove.

18. This Court, after taking into consideration the principle

to establish the charge beyond all shadow of doubt and the

same cannot be said to have been proved by the prosecution

on the basis of the discussion made hereinabove, therefore,

the finding recorded to the effect for proving the culpability of

the Appellant No.2 Vipin Bihari Mahto, is not being

established beyond all shadow of doubt and having not been

considered by the learned trial court, the judgment of

conviction against the Appellant No.2 Vipin Bihari Mahto,

therefore, suffers from error.

19. This Court, on the basis of the discussion made

hereinabove, is of the view that in the facts and

circumstances of the case and as per the discussion made

hereinabove, the prosecution has not been able to prove the

charge levelled against the Appellant No.2 Vipin Bihari Mahto

beyond all shadow of doubt. Therefore, the judgment of

conviction passed against the Appellant No.2 Vipin Bihari

Mahto also requires interference.

20. For the foregoing reasons, the impugned Judgment of

Judgment of conviction dated 25.06.1993 and Order of

sentence dated 28.06.1993, passed by the Additional District

& Sessions Judge-II, Godda, in Sessions Case No.12 of 1993 Cr. Appeal (D.B.) No. 341 of 1993 (P)

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/ 6 of 1993, convicting and sentencing the Appellant Nos. 2,

3, 4, 5 and 7, namely, Vipin Bihari Mahto, Bhim Prasad

Mahto, Arjune Prasad Mahto, Lakhiram Mahto and Ram

Prasad Mahto for the offences under Section 302/34 of the

Indian Penal Code, are hereby, quashed and set aside.

21. This appeal is accordingly, allowed. The appellants are

discharged from criminal liability.

22. Let the Lower Court Records be sent back to the Court

concerned forthwith, along with a copy of this Judgment.

(Sujit Narayan Prasad, J.) I agree.

(Subhash Chand, J.) (Subhash Chand, J.)

Jharkhand High Court, Ranchi Dated, the 30th day of January, 2023.

A.F.R.

Birendra /