Jharkhand High Court
Kongresh Mahto vs The State Of Bihar (Now Jharkhand) on 28 April, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
( 2025:JHHC:12770-DB )
Criminal Appeal (D.B.) No. 256 of 1997(R)
With
Criminal Appeal (D.B.) No. 1128 of 2009
With
Criminal Appeal (D.B.) No. 434 of 2024
With
Criminal Appeal (D.B.) No. 436 of 2024
With
Criminal Appeal (D.B.) No. 497 of 2024
With
Criminal Appeal (D.B.) No. 1110 of 2024
---------
[Against impugned judgment and order of sentence dated
06.10.1997 passed by learned Sessions Judge in Sessions Trial
No.8 of 1992, impugned judgment dated 26.11.2009 and order of
sentence dated 30.11.2009 passed by learned Addl. Sessions
Judge, FTC-VII, Giridih in S.T. Case No.08(A) of 1992, impugned
judgment dated 27.02.2024 and order of sentence dated 06.03.2024
passed by learned Addl. Sessions Judge, 1st, Giridih in S.T. Case
No.08(B) of 1992 and impugned judgment dated 14.06.2024 and
order of sentence dated 18.06.2024 passed by learned Addl.
Sessions Judge, 1st, Giridih in S.T. Case No.08(C) of 1992]
---------
In Criminal Appeal (D.B.) No. 256 of 1997(R)
1. Kongresh Mahto, son of Parmeshwar Mahto.
2. Balo Mahto, son of Dipu Mahto, both residents of village-
Dabar, P.S. Gawan, District- Giridih. ... ... Appellants
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
In Criminal Appeal (D.B.) No. 1128 of 2009
Awadh Singh @ Awadh Kishore Singh, son of Late Huro Singh,
resident of village Dabar, P.O. & P.S. Ganwa, District- Giridih.
... ... Appellant
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
1
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In Criminal Appeal (D.B.) No. 434 of 2024
Sitan Singh @ Siddheshwar Singh age about 72 years S/o Late
Subi Singh R/o village Daber, P.O.+ P.S. Gawan, District- Giridih
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
In Criminal Appeal (D.B.) No. 436 of 2024
Sadhu Pasi, aged about 72 years, son of Late Dhani Pasi, resident
of village Dabar (Sherua), P.O. & P.S.- Gawan, District- Giridih
... ... Appellant
Versus
1. The State of Jharkhand.
2. Jobraj Singh, S/o Babulal Singh, resident of village Dabar,
P.O. & P.S.- Gawan, District- Giridih ... ... Respondents
In Criminal Appeal (D.B.) No. 497 of 2024
Madhusudan Prasad Yadav @ Madhusudan Mahto, aged about
70 years, son of Late Kisun Mahto, resident of village-
Dabarserua, P.O. & P.S. - Gawan, District- Giridih
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
In Criminal Appeal (D.B.) No. 1110 of 2024
Sundar Mahto @ Surendra Prasad Yadav, S/o Kanhay Mahto @
Kanhaiya Prasad Yadav, aged around 48 years, R/o Mouza-
Dabar, P.S.- Gawan, District- Giridih (Jharkhand). ... Appellant
Versus
The State of Jharkhand ... ... Respondent
---------
For the Appellant(s) : Mr. Jitendra S. Singh, Advocate
Ms. Pragati Prasad, Advocate
[in Cr. A(DB) No. 256/1997]
2
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Mr. S.K. Murtty, Advocate
[in Cr. A(DB) Nos. 1128/2009, 436/2024]
Mr. Arwind Kumar, Advocate
[in Cr. A(DB) No. 434/2024]
Mr. A.K. Sahani, Advocate
[in Cr. A(DB) No. 497/2024]
For the Respondent : Mr. Saket Kumar, A.P.P.
Mr. V.S. Sahay, A.P.P.
Mrs. Shweta Singh, A.P.P.
Mr. Vishwanath Roy, Spl. P.P.
For the Informant : Mr. Shree Niwas Roy, Advocate
---------
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
JUDGMENT
C.A.V. on 21.01.2025 Pronounced on 28.04.2025
1. These criminal appeals arise out of the same case crime
number and therefore heard together and disposed of by a
common judgment.
2. These criminal appeals are directed against impugned
judgment and order of sentence dated 06.10.1997 passed by
learned Sessions Judge in Sessions Trial No.8 of 1992, impugned
judgment dated 26.11.2009 and order of sentence dated
30.11.2009 passed by learned Addl. Sessions Judge, FTC-VII,
Giridih in S.T. Case No.08(A) of 1992, impugned judgment dated
27.02.2024 and order of sentence dated 06.03.2024 passed by
learned Addl. Sessions Judge, 1st, Giridih in S.T. Case No.08(B) of
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1992 and impugned judgment dated 14.06.2024 and order of
sentence dated 18.06.2024 passed by learned Addl. Sessions
Judge, 1st, Giridih in S.T. Case No.08(C) of 1992 arising out of
Gawan P.S. Case No. 53/1989 for the offence under Sections
147/302/149/201 of the Indian Penal Code and the appellants
were directed to undergo sentence of 2 years RI for offence under
Section 147 of IPC and life imprisonment and fine of Rs.20,000/-
of the offence under Section 302/149 of the IPC and further
sentence of 3 years RI and sentence of Rs.10,000/- under Section
201 of the IPC. All the sentences were directed to run
concurrently and in the case of default of payment of fine further
sentence of RI for one year had been imposed.
3. In the present case, Gawan P.S. Case No. 53/1989 came
into existence on the written report of one Shri Jobraj Singh, son
of Babu Lal Singh, resident of Dabar, P.S. Gawan, District Giridh
who stated therein that on 13.07.1989 his son namely, Hriday
Narayan Singh and his grandsons namely, Biranchi Kumar Singh
and Dayanand Kumar Singh after taking meal went to cattle
house (Baithka) for sleeping and Mahendra Kumar Singh followed
them, then when he reached near Banyan tree then saw that his
son Hriday Narayan Singh was being taken towards western side
after killing him by Chhotan Pasi, Sadhu Pasi, Sahdeo Mahto,
Kongresh Mahto, Sundar Mahto, Mahesh Mahto, Madhusudan
Mahto, Bhuneshwar Mahto and Balo Mahto, all residents of
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Dabar, P.S. Gawan and thereafter Sadhu Sharan Singh, Sitan
Singh, Makundeo Singh, Janardan Singh, Awadh Kishore Singh
and Umesh Mahto were also going from near his said house. He
further allegedly stated that informant has been told that the
house in which Hriday Narayan Singh was sleeping was closed by
chain from outside and when the chain was opened, then
Mahendra Kumar Singh came across the fact from Dayanand
Kumar Singh and Biranchi Kumar Singh that at about 10.30 P.M.
above-stated persons after removing the door entered into the
room and Kongresh Mahto strangulated Hriday Narayan Singh.
Sundar Mahto and Balo Mahto pressed his chest, whereas
Madhusudan Mahto and Sadhu Pasi were pressing his feet.
Hriday Narayan Singh was saying not to kill him, but Chhotan
said that they could not leave him without killing. Thereafter,
elapse of five-six minutes Hriday Narayan Singh died and accused
persons wrapped the dead body of Hriday Narayan Singh in the
Gendra and bedsheet on which he was sleeping and took away
his corpse. Other accused persons chained the room from
outside. Informant was also apprised that Chhotan Pasi and other
eight who were inside the room were having lathi, bhala and
barchha and they took away one torch, one full-pant, shirt, one
watch which was on the wrist of Hriday Narayan Singh.
4. It is further stated by the informant that in the night he
could not approach police station on account of fact that it was
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raining and accused persons also blocked the way. Therefore, this
written report has been given on 14.07.1989.
5. After due investigation, charge sheet has been submitted
being, Charge Sheet No. 51/1989 and charge has been framed on
08.10.1989 under Sections 302/201/449/380/120-B/149/147
of the Indian Penal Code against Kongresh Mahto, Balo Mahto,
Sadhu Pasi and Madhusudan Mahto, under Sections
302/201/380/120-B/149/147 of the Indian Penal Code against
Awadh Kishore Singh and Sitan Singh and under Sections
201/449/380/120-B/147 of the Indian Penal Code against
Sundar Mahto, to which convicts/appellants did not plead guilty
and claimed to be tried.
6. As far as prosecution case is concerned, prosecution has
got recorded evidence of as many as 10 witnesses and apart from
that prosecution has bring on record signature of Biranchi Kumar
Singh on his statement u/s 164 CrPC as Ext.1, signature of
Dayanand Kumar Singh on his statement u/s 164 CrPC as
Ext.1/1, the post-mortem examination report as Ext.2, the
written report as Ext. 3, seizure list as Ext.4, inquest report as
Ext. 5, confessional statement of Balo Mahto as Ext. 6, formal FIR
as Ext. 7, signature of Sukhdeo Tudu on inquest report as
Ext.1/2 and signature of Mahendra Kumar Singh as Ext.1/3.
Defence has also adduced evidence of two witnesses namely,
Basant Narayan Sharma and Anup Kumar and brought on record
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certain papers which show that there was inimical relation
between informant side and convict side.
7. After going through the trial court record, it transpires that
PW-1 Biranchi Kumar Singh and PW-2 Dayanand Kumar Singh
are stated to be eye witness to the occurrence. As far as PW-10
Mahendra Kumar Singh is concerned, it is the case of prosecution
that while he was coming to cattle house (Baithka) for sleeping
then he saw near Banyan tree the dead body of Hriday Narayan
Singh was being carried by accused persons which was wrapped
in Gendra and bedsheet, then he immediately rushed to cattle
house (Baithka) and he was apprised by both the eye witnesses
regarding the incident. As per written report, informant (PW-4)
has received information qua the incident from Mahendra Kumar
Singh (PW-10) and he (PW-10) received information from PW-1
and PW-2.
8. Learned counsel for the appellant(s) at the outset submitted
that PW-1 and PW-2 were minor at the time of incident and their
respective statement under Section 164 CrPC and testimony
before court during the trial clearly show that they are tutored
witnesses and that's why their testimonies are consistent to their
earlier statement, but it ought not be relied by this Court.
Learned counsel tried to convince this Court that there is
inherent inter-se contradiction in the testimonies of PW-1, PW-2,
PW-4 and PW-10, which clearly indicate that the prosecution
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story is non-believable because each of the witnesses is having
their own story of incident what they deposed before the court.
Further, it has been argued on behalf convicts/appellants that in
the present case prosecution has miserably failed to prove the
fact that alleged recovery of dead body is that of deceased Hriday
Narayan Singh. To buttress their arguments, learned counsels
drew attention of this Court towards the testimony of doctor who
has been examined in the present case as PW-3 and has stated
categorically that body was so decomposed that even cause of
death could not be ascertained during the course of post-mortem
examination and all soft tissues were absent and no evidence of
any injury on bone part was found. It has also been pointed out
that none of the family members who were got examined in the
present case has ever stated in their respective testimony that on
what basis they have identified the dead body as that of deceased
Hriday Narayan Singh. Lastly, it has been submitted that the
prosecution story which has come from the mouth of PW-1 and
PW-2 does not appear to be probable and to implicate accused
persons with whom informant was admittedly inimical relation
false story was concocted against them, that's why FIR got
registered belatedly.
9. Per contra, learned A.P.P./Spl. P.P. submitted that there
are two eye witnesses who have vividly given description of the
incident and despite lengthy cross-examination on behalf of
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convicts nothing has been extracted from their mouth which
could shake the credibility of those eye witnesses. Further,
submission has been made that law does not prohibit to accept
the evidence of minor if it inspires confidence to the Court. Upon
aforesaid premise, it has been prayed that no interference is
required by this Court in finding of learned trial court.
10. As stated earlier that PW-1 Biranchi Kumar Singh and
PW-2 Dayanand Kumar Singh are said to be the eye witnesses in
the present case. So, first of all, we would like to analyze the
testimony of these two witnesses. It is stated by PW-1 that
incident is of 13.07.1989 at about 10.30 PM and he and
Dayanand Kumar Singh were studying in the light of lantern and
deceased Hriday Narayan Singh was lying on the chowki, then
there was some bang on the door from outside but the door was
closed from inside. Then Dayanand Kumar Singh asked who is
outside but no response was given and all of a sudden the door
was removed from its frame and thereafter Kongresh Mahto,
Sahdeo Mahto, Chhotan Pasi, Sadhu Pasi, Sundar Mahto,
Mahesh Mahto, Balo Mahto, Bhuneshwar Mahto, Masudan
Mahto, total nine persons entered into the room and Kongresh
Mahto started throttling Hriday Narayan Singh, then Sundar
Mahto, Mahesh Mahto and Balo Mahto pushed his chest and
Masudan Mahto and Sadhu Pasi pressed the leg of Hriday
Narayan Singh. Thereafter, Hriday Narayan Singh started crying
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then Chhotan Pasi put his palm on his mouth and from other
hand pointed out revolver towards them and extended threat that
if they will make hulla then they would be killed. Hriday Narayan
Singh was killed by throttling and thereafter his dead body was
wrapped in the bedsheet which was on the chowki and they
removed dead body from the room and alongwith them one torch,
one lathi having bhala, pant, shirt, watch of Hriday Narayan
Singh and two pillows were also been taken by them.
Further, when the aforesaid accused persons got away from the
room then Sadhu Sharan Singh, Sitan Singh, Makundeo Singh,
Janardan Singh, Awadh Kishore Singh and Umesh Mahto were
also standing outside the door and they put the door in the frame
(choukhat) and door was got closed by putting chain and rope was
also knotted in the chain so that it could not be opened.
Thereafter, Mahendra Singh came and he opened the door by
removing the chain, then PW-1 and PW-2 apprised the incident to
him and all the three went to their home and incident was
narrated to Jobraj Singh (informant). He further stated that dead
body of Hriday Narayan Singh was found at Kusmai village after
25-26 days of incident. Signature of PW-1 in 164 CrPC statement
has been marked as Exhibit-1.
11. In cross-examination, PW-1 has stated that accused Sadhu
Sharan Singh, Sitan Singh, Makundeo Singh, Janardan Singh
and Awadh Kishore Singh are their gotia and one case of murder
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of Makundeo Singh, Janardan Singh and Brahmdeo Singh is
going on and his uncle Madan Singh and other persons were
facing the trial. He further stated that towards east of place of
occurrence there is Baithka of one Bhagirath Singh and at about
50 yards there is house of Bhadi Thakur and house of Kaleshwar
Rai is 200 yards. House of Janardan Singh and Hadis Mia is also
about 300 feet away from the place of occurrence.
12. This witness has further stated in cross-examination that
when bang at the door was given, then Hriday Narayan Singh was
not sleeping rather lying on the bed and after bang he did not
respond and even when the door was removed then his uncle did
not react and also when the accused persons entered into room
his uncle was lying on the bed. Out of fear, he and PW-2 went in
the corner of the room and eight to ten minutes had taken in
commission of crime. He has also stated that he saw the dead
body of his uncle at Kusmai village and his family member was
also went there to see the dead body. His family member went to
police station along with the dead body. He further submitted
that face of the dead body was alright and it was identifiable.
13. PW-2 has stated in consonance with what PW-1 has stated.
However, in cross examination, PW-2 has stated that at the time
of incident, he was studying in 7th standard whereas Biranchi was
studying in 8th or 9th standard but he was unable to tell either the
name of his class teacher of 7th standard or books of 7th standard
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and even date of examination of 7th standard. Signature of PW-2
in 164 CrPC statement has been marked as Exhibit-1/1.
14. PW-3 Dr. Bhupendra Prasad Singh conducted the post-
mortem examination on the dead body of Hriday Narayan Singh
on 11.08.1989 and found the following:-
I. Trunk and feet were tied with rope.
II. Small black hair on scalp detached were found.
III. All bones were exposed.
IV. Almost all soft tissues were destroyed.
V. Trachea, larynx, oesophagus and all visceras were
destroyed.
VI. Ribs on both sides chest were destroyed anteriorly.
VII. 1st and 4th cervical vertebrae were present and rest were not
found.
VIII. No evidence of fracture or injury of any kind either ante-
mortem or post-mortem was found.
IX. Cause of death could not be ascertained during the course
of P.M. examination. Lung bones like humorous radius and
ulnas both sides tibia and fibula both sides and four cervical
vertebrae were preserved for further investigation, if needed.
X. Time elapsed since death till the P.M. examination, "about
four weeks".
XI. The dead body was brought by constable no. 269
Banshidhar Mishra and the chawkidar accompanied by Jobraj
Singh, the father of the deceased. The dead body was brought
from Kusmai Pathlahiya Mica Mines, Gawan P.S.
XII. All soft tissues as mentioned above were absent and no
evidence of any injury on bony part was found. As such the cause
of death could not be ascertained.
XIII. If the dead body is thrown and submerged in water in
which there be aquatic animals such as fishes etc., a number of
parts of the dead body would be consumed by them.
This witness prepared the post-mortem report of Hriday
Narayan Singh and put his signature and marked it as Exbt.-2.
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15. PW-4 Jobraj Singh who happens to be the informant in the
present case has reiterated the contents what he has written in
his written report, but has stated that incident inside the Baithka
(cattle house) was narrated to him by PW-1 and PW-2 whereas
PW-10 has stated him that when he reached near Banyan tree
then he saw accused persons were taking away Hriday Narayan
Singh after killing him. After hearing above-said fact, he visited to
cattle house then saw door was opened and he did hulla and
made search. He has also said that it was raining that's why he
did not go to police station. Informant was having enmity with
accused persons therefore he did not go to police station out of
fear that they might kill him. He has identified his writing and
signature of written report and the same is marked as Exhibit-3.
Precisely, PW-4 evidence is based upon what was heard by PW-1
and PW-2 about the incident inside cattle house whereas from
PW-10 he heard Hriday Narayan Singh was being taken by 9
accused persons after killing. In cross-examination, he has
categorically admitted that some of the accused persons are gotia
and there is inimical relation between accused persons and civil
as well as criminal litigation is going on between informant side
and accused side. He has also stated in his cross-examination
that on the day of incident rain started at 10.00 PM and stopped
by 10.45 PM.
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16. PW-5 is the I.O. of the present case who has given
description of place of occurrence and has also stated that he
visited to the place of occurrence on 14.07.1989 and recorded the
statement of witnesses and on 15.07.1989 he again visited to the
place of occurrence and seized one lantern and seizure list was
accordingly prepared and the same has been marked as Exhibit-
4. This witness further stated that on the basis of confessional
statement of Balo Mahto and on saying of Balo Mahto, Mahesh
Mahto and Kongresh Mahto dead body of Hriday Narayan Singh
was taken out from 70-75 feet of water and inquest report was
prepared which was signed by Sukhdeo Tudu and Chore Manjhi.
He has also identified his handwriting of the death inquest report
and same has been marked as Exhibit-5. In cross-examination,
I.O. has stated that he verified the records of police station and
mentioned in the case diary that at the time of incident and prior
to incident there were ten matters of I.P.C. and twenty matters of
107 CrPC were pending between informant side and accused side.
He also stated that at the time of searching of dead body
informant was not with him. Certain contradictions have also
been taken from the mouth of I.O. who has stated that informant
has not stated that Biranchi and Dayanand had stated about the
incident and he made hulla and also made search.
17. PW-6 is a Constable who accompanied other police officials
and has stated that at the behest of accused Balo Mahto, Mahesh
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Mahto and Kongresh Mahto dead of Hriday Narayan Singh got
recovered and thereafter they returned to police station. He does
not able to remember who had cited as a witness in death inquest
report, however, dead body was identified by Madan Singh,
brother of Hriday Narayan Singh. He also stated that the skin of
the face of dead body was destroyed and his statement was not
recorded by Darogaji.
18. PW-7 is also one of the police constables who accompanied
PW-6 alongwith other police officials and has stated that at the
behest of accused Balo Mahto, Mahesh Mahto and Kongresh
Mahto dead body of Hriday Narayan Singh got recovered from
Kusmai Chanan. He has also stated that his statement was not
recorded by Darogaji at the time of investigation.
19. PW-8 is witness to death inquest report who has stated in
his examination-in-chief that in his presence, no dead body was
taken out from Kusmai Chanan. However, one dead body was
kept 50 feet away from Kusmai Pathlaiya Chanan. But no paper
was prepared by Darogaji in his presence rather he was already
having a paper on which he put his signature. In cross-
examination he has stated that dead body was in a gunny bag
(not of plastic) and it was tied.
20. PW-9 is also witness to death inquest report who has stated
that he put signature on a paper which was prepared by Darogaji
and his statement was not recorded and this witness has been
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declared hostile. He also showed his ignorance towards the
content of paper and has stated that gunny bag was tied.
21. PW-10 Mahendra Kumar Singh has stated that on
13.07.1989 at about 10.00 PM in the night after taking meal, he
was going with torch for sleeping and Biranchi Singh, Hriday
Narayan Singh and Dayanand Singh had already reached to
Baithka after having their meal and were studying. He further
stated that he was lighting the torch and saw Sadhu Pasi,
Chhotan Pasi, Kongresh Mahto, Sahdeo Mahto, Balo Mahto,
Sundar Mahto, Mahesh Mahto, Bhuneshwar Mahto and
Madhusudan Mahto, all were carrying dead body wrapped in
bichhawan (bed) and were being taken towards western side and
before going towards western side they were standing near
Baithka. He further stated that Janardan Singh, Awadh Kishore
Singh, Sadhu Singh, Umesh Mahto, Makundeo Mahto and Sitan
Singh came out from the verandah of his Baithka. Janardan also
lit torch and told that he was in search of this witness and asked
to catch him. Thereafter, Chhotan Pasi and Sundar Mahto were
started chasing him to kill and this witness started fleeing away.
Thereafter, all the accused persons went towards west and he
went to Baithka and he saw there was chain tied with a rope on
the door of the room in which he used to sleep and inside the
room Biranchi and Dayanand were weeping. Thereafter removing
chain, he entered into room then he could not find Hriday
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Narayan Singh and only Biranchi and Dayanand were present
and they told him that after killing Hriday Narayan Singh all the
nine accused persons took his dead body after wrapping in the
bistar (bedding). Old dhoti, pant, shirt and watch were also taken
by accused persons. Thereafter, he alongwith Biranchi and
Dayanand went to their home and informed Jobraj Singh. He has
also stated that his statement under Section 164 CrPC was got
recorded and he identified his signature and same has been
marked as Exhibit-1/3.
22. In cross-examination, he has stated that he could not say
what was wrapped in the bistar (bedding). He has also stated that
he was chased by Chhotan Pasi and Sundar Mahto, then he ran
to his home and thereafter alongwith his uncle Jograj Singh
(informant) came and they were having only lantern and torch in
their hand. He has also stated that he, his uncle, Biranchi and
Dayanand came to home from Baithka. The villagers surrounded
from all the side, as such, they scared to come out. He also stated
that he saw the dead body of Hriday Narayan Singh in police
station. He further stated that dead body was taken out from
mines where he saw the dead body and it was in plastic bag and
aluminum wire was wrapped on it and dead body was not
decomposed and it was identifiable. He has also stated that
Janardan Singh, Awadh Kishore Singh, Makund Singh, Sitan
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Singh and Sadhu Saran Singh are their gotia and out of them
Janardan Singh and Makund Singh were also killed.
23. We find that when the statement of PW-1 and PW-2 got
recorded under Section 164 CrPC, their age were 12 years and 10
years respectively, but perusal of their respective said statement
reveals that no certificate of competency has been given by the
learned Magistrate who recorded their respective statements.
Approximately 5 years after recording of 164 CrPC statement,
their respective testimony got recorded before the trial court in
the present case. By that time, even PW-1 has divulged his age as
17 years whereas PW-2 as 15 years. But before recording their
respective testimony, no certificate of competency has been given
by the trial Judge. PW-1 and PW-2 have given vivid description of
incident by taking names of as many as 15 accused persons out
of which nine who entered inside the room and even six who were
in the Verandah of the room/Baithka. Not only this, this Court
finds that these two witnesses have stated categorically what role
played by the accused persons who entered inside the room.
These two witnesses further stated that deceased Hriday Narayan
Singh was lying on the chowki and was awaken even when bang
at door was given, then also he kept on lying and even when nine
accused persons admittedly who were having inimical relation
with informant side entered in the room then also it is said that
Hriday Narayan Singh was kept on lying on the bed. This also
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appears to be unnatural conduct on the part of deceased as
stated above by the witness. I.O. has stated that Baithka is about
12ft. X 8ft. Considering the above said size and presence of 12
persons (9 accused persons + Deceased + PW-1 & PW-2), it is
difficult for us to believe that if nine accused persons entered
inside the room, all of a sudden then two children of tender age
could able to see the activity/role played by the accused persons
and, that too, when they were threatened by pistol not to
cry/shout and they themselves stated that both of them went in
the corner of the room and they shut their eyes. Again, it is
difficult for us to believe the version of these two eye witnesses on
the account that it is the case of prosecution that only one
lantern was lighting in the Baithka and it was raining and dark
night at about 10.00 PM, then how these two witnesses were able
to identify exact six number of accused persons who were said to
be standing at Verandah. Description of place of occurrence as
stated by PW-1/PW-2 reveals that it is surrounded by houses of
other persons in nearby, then again it is difficult to understand
the reason that why six persons exposed themselves by standing
in Verandah of cattle house/Baithka, that too, when the Baithka
belongs to the person with whom accused persons were having
inimical relation with them.
24. Further, we find that PW-10 Mahendra Kumar Singh has
stated in his examination-in-chief that when he was coming after
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taking meal to the Baithka for sleeping by lighting torch then he
saw accused persons who were carrying dead body in the
bichhawan (bed), but in cross-examination there is complete vota-
face by this witness who has stated that he was not knowing that
what was there in the wrapped bistar (bedding). Further, PW-10
has stated that as accused persons chased him, he went straight
to his home and thereafter, came alongwith his uncle Jobraj
Singh (informant) to the Baithka and thereafter he, Jobraj Singh
and two children (PW-1 & PW-2) came back to the home. This fact
is completely in contradiction to what is stated by PW-10 in his
examination-in-chief and also from the testimony of PW-1 and
PW-2 as these two witnesses have stated that PW-10 alone by
untying rope opened the chain and entered the room, then both of
them apprised the incident to him and thereafter all the three
(PW-1, PW-2 & PW-10) went to home and conveyed the incident to
informant. Testimony of PW-4 reveals that alleged incident which
took place inside Baithka had been conveyed to informant by PW-
1 and PW-2, but it does not find corroboration from the written
report of PW-4. Written report reveals that it is PW-10 who
narrated the incident to informant.
25. It further transpires that I.O. has stated that at the time of
search of dead body informant was not with him and it is three
accused persons namely, Balo Mahto, Mahesh Mahto and
Kongresh Mahto on whose behest dead body has been recovered.
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From evidence of doctor (PW-3), it can be well inferred with
certainty that face of the dead body was not identifiable as almost
all the soft tissues were destroyed and all bones were exposed, as
all soft tissues were absent no evidence of any injury on bony part
was found, as such the cause of death couldn't be ascertained.
Then, one question which cropped up in our mind that how
identification of dead body was made and alleged claim of seeing
dead body of Hriday Narayan Singh by the witnesses PW-1 and
PW-10 has no basis and difficult for us to rely the version of
witness on this aspect, despite the fact that they claimed that
dead body was identifiable. PW-6 has deposed that Madan Singh,
brother of deceased identified the dead body. Madan Singh has
not been examined as a witness and even PW-8 and PW-9 who
are witnesses of death inquest report have also not uttered a word
that how the dead body was identified. Of course, from cross
examination and 313 CrPC statements of accused persons, it
appears that accused persons have not disputed the identity of
dead body, but undoubtedly it was primary burden of proof upon
the shoulder of prosecution to establish the identify of dead body
as, "that of Hriday Narayan Singh". There is no iota of material
which would even remotely suggest that where and when dead
body was shown to the family member for identification and who
has identified on which basis.
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26. Other aspect, which we want to discuss is that, it is
admitted position that there was inimical relation between
informant side and accused side. It is trite law that enmity is a
double-edged weapon. So, it can be a motive for a person to
commit an offence and at the same time, it can also prompt other
side (victim) to implicate falsely the person with whom they have
enmity. It has been also vehemently argued on behalf of defence
that informant was chronic litigant well-versed with the legal
jugglery and intentionally informant did not approach public
authority in the night to concoct and/or manufacture story so
that all the persons inimical to him could be framed in the
present case.
27. We have carefully gone through the material which has
come on record regarding non-lodging of FIR in the night of
13.07.1989 when incident took place. The reason assigned was
that the informant was having threat from the accused persons
and it was raining. From the perusal of evidence available on
record, it transpires that informant was descendent of ex-landlord
and police station is just 2½ KM away from the place of
occurrence. It is the statement of informant himself that rain
started at 10.00 PM in the night and stopped by 10.45 PM. It has
also been stated that out of fear even they didn't tell the incident
to villager. The above said act of informant side is also bereft of
normal human conduct that if a kith and kin of a person was
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killed and taken away by known accused person then the victim
side would not make hue and cry and would not also seek help
from the villager. This village is said to having more than 80
houses and it is also not believable that all persons are inimical to
the informant. FIR is registered on 14.07.1989 and sent to
concerned Magistrate on 17.07.1989 and there is no explanation
on the part of prosecution for delayed sending of FIR to concerned
Magistrate. Therefore, false implication of appellants cannot be
ruled out.
28. Considering the aforesaid discussion, we find that the
manner of incident brought on record on behalf of prosecution
appears to be improbable, therefore, appellants are entitled for
benefit of doubt.
29. Therefore, impugned judgment and order of sentence dated
06.10.1997 passed by learned Sessions Judge in Sessions Trial
No.8 of 1992, impugned judgment dated 26.11.2009 and order of
sentence dated 30.11.2009 passed by learned Addl. Sessions
Judge, FTC-VII, Giridih in S.T. Case No.08(A) of 1992, impugned
judgment dated 27.02.2024 and order of sentence dated
06.03.2024 passed by learned Addl. Sessions Judge, 1st, Giridih
in S.T. Case No.08(B) of 1992 and impugned judgment dated
14.06.2024 and order of sentence dated 18.06.2024 passed by
learned Addl. Sessions Judge, 1st, Giridih in S.T. Case No.08(C) of
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1992 are not sustainable in the eyes of law and therefore set
aside.
30. Accordingly, these appeals are allowed. Pending I.A., if any,
stands disposed of.
31. Since the appellants are on bail, they are discharged from
the liability of their respective bail bonds.
32. Let the trial court record be sent back to the court
concerned forthwith.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 28th day of April, 2025
R.K./- A.F.R.
