Jharkhand High Court
Hari Shankar Yadav vs The State Of Bihar (Now Jharkhand) on 16 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:19620-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 206 of 1996 (R)
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(Against the Judgment of conviction dated 08.10.1996 and order of sentence
dated 09.10.1996 passed by learned 4th Additional Sessions Judge, Palamau
at Daltonganj, in Sessions Trial No. 232 of 1991)
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1. Hari Shankar Yadav
2. Sheo Shankar Yadav
3. Sheo Nandan Yadav
4. Sheolok Yadav
All sons of Kodu Yadav, at and P.O. Jalim, P.S. Latehar, District
Palamau at Daltonganj.
... ... Appellants
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
With
Cr. Appeal (DB) No. 185 of 2020
-------
(Against the Judgment of conviction and order of sentence dated 19.12.2019
passed by learned Sessions Judge, Latehar in Sessions Trial No. 232A of
1991)
-------
Prasad Mahto @ Ram Prasad Mahto, aged about 69 years, son of late
Sukhdeo Mahto, resident of Village-Tikuliya, P.O. & P.S. Lawalong,
District-Chatra.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellant : Mr. A.K. Kashyap, Sr. Advocate
For the Respondent : Mr. Abhay Kr. Tiwari, APP
[Criminal Appeal No. 206 of 1996 (R)]
Mr. Manoj Kr. Mishra, APP
[Criminal Appeal No. 185 of 2020]
.....
th
C.A.V./Reserved on 10 June, 2025 Pronounced on 16 /07/2025
Per Sujit Narayan Prasad, J.:
1. The instant appeal being Criminal Appeal (DB) No. 206 of 1996 (R), under
Section 374 (2) with Section 389 of the Code of Criminal Procedure, has
been preferred against the Judgment of conviction dated 08.10.1996 and
order of sentence dated 09.10.1996 passed by learned 4th Additional Sessions
Judge, Palamau at Daltonganj, in Sessions Trial No. 232 of 1991, whereby
and whereunder, the appellants have been convicted and sentenced to
undergo rigorous imprisonment for life for the offence under Section 302/34
of IPC and further sentenced to undergo rigorous imprisonment for ten years
for the offence under Section 307/34 of IPC. Both the sentences have been
directed to run concurrently.
So far as Criminal Appeal (DB) No. 185 of 2020 is concerned, under
Section 374 (2) of the Code of Criminal Procedure, the same has been
preferred against the Judgment of conviction and order of sentence dated
19.12.2019 passed by learned Sessions Judge, Latehar in Sessions Trial No.
232/A of 1991, whereby and whereunder, the appellant has been convicted
and sentenced to undergo rigorous imprisonment for life for the offence
under Section 302/34 of IPC along with fine of Rs.6,000/- and in default of
payment of fine, he has further been sentenced to undergo simple
imprisonment for six months and further sentenced to undergo rigorous
imprisonment for 08 years along with fine of Rs.3,000/- and in default of
payment of fine, he has further been sentenced to undergo simple
imprisonment for two months for the offence under Section 307/34 of IPC.
Both the sentences have been directed to run concurrently.
Factual Matrix
2 Cr. Appeal (DB) No. 206 of 1996 (R)
with
2. The prosecution story in brief as per the allegation made in the fardbeyan by
the informant, Ramjeet Mahto , read as under:
The informant, Ramjeet Mahto in his Fardbeyan recorded on
13.11.1989, at Sub-divisional Hospital Latehar, has stated that when he
returned after grazing the cattle, he was informed by Kuleshwar Singh that
his wife was weeping and screaming. On reaching his house, he saw his wife
Bilaso Devi (P.W.-5) being carried on a scooter by Fakira Saw to Latehar
hospital. She was badly injured and there were injuries on her head and other
parts of body. He had further stated that she has been injured with sharp
cutting weapon by someone with intention to kill. He could also know that
his younger daughter Nitla Kumari was killed due to injuries on her neck by
a sharp cutting weapon. He saw his daughter laying dead. He came along
with the other for treatment of his wife. He could not say who killed his
daughter and injured his wife and also could not say about the reason for the
same. He had, however, said that he was sure that his step brother Sheo
Shankar Mahto etc. were involved as he was having land dispute with them.
Earlier also, it has been alleged that they had put his house on fire for which
he had lodged a complaint at the police station.
3. Accordingly, Latehar P.S. Case No. 114 dt. 13.11.1989 for the offences U/s
302, 326, 307 and 324 I.P.C against unknown has been registered. After
investigation the police submitted charge sheet no. 48/90 dt. 31.07.90 against
the accused Shiv Shankar Yadav, Hari Shankar Yadav, Shiv Nandan Yadav
and Shivlok Yadav besides the absconding accused Krishna Mahto(since
dead) and Prasad Mahto [the appellant of Criminal Appeal (DB) No. 185 of
3 Cr. Appeal (DB) No. 206 of 1996 (R)
with
2020], for the offences u/s 147, 148, 149, 302, 307, 326, 324 and 323 of the
I.P.C.
4. The first information report which was drawn on the statement of the
informant, was against unknown persons. Later on, on the statement made
by Bilaso Devi, wife of the informant (P.W.-5) after more than one months
of the date of occurrence, the appellants were directly named as accused
persons.
5. The cognizance for the offences was taken on 18.08.1990 for the offences
u/s 147, 148. 149, 302, 307, 326, 324 and 323 of the I.P.C.
6. Accordingly, the trial proceeded and the appellants of Criminal Appeal (DB)
No. 206 of 1996 (R) were found guilty by the learned trial court for the
offence under Section 302/34 and 307/34 of IPC and have been sentenced to
undergo rigorous imprisonment for life for the offence under Section 302/34
of IPC and further sentenced to undergo rigorous imprisonment for ten years
for the offence under Section 307/34 of IPC.
7. Thereafter, the O.C., Latehar had apprehended the appellant of Criminal
Appeal (DB) No. 185 of 2020 and was produced before the Addl. Sessions
Judge-IV, Palamau on 07.05.2019 and remanded. The another accused
Krishna Mahto was reportedly dead.
8. The learned trial court by taking note that earlier the rest chargesheet
accused persons [appellants of Criminal Appeal (DB) No. 206 of 1996 (R)]
had faced trial in connection with original S.T. 232/91 and were convicted
vide Judgment dt. 08.10.1996 r/w the sentence dt. 09.10.1996 against which
Cr. Appeal No. 206/96(R) is pending before the Hon'ble Court, the appellant
4 Cr. Appeal (DB) No. 206 of 1996 (R)
with
of Criminal Appeal (DB) No. 185 of 2020 after receipt of the record was
produced through video conferencing on 06.07.2019 and the charges for the
offences u/s 302 and 307 both r/w 34 of the I.P.C were framed against him
which was read over and explained to accused in Hindi to which he pleaded
not guilty and claimed trial.
9. Accordingly, the trial proceeded and the appellant of Criminal Appeal (DB)
No. 185 of 2020 has been convicted and sentenced to undergo rigorous
imprisonment for life for the offence under Section 302/34 of IPC along with
fine of Rs.6,000/- and in default of payment of fine, he has further been
sentenced to undergo simple imprisonment for six months and further
sentenced to undergo rigorous imprisonment for 08 years along with fine of
Rs.3,000/- and in default of payment of fine, he has further been sentenced
to undergo simple imprisonment for two months for the offence under
Section 307/34 of IPC. The aforesaid orders of conviction and sentence is
under challenge herein.
Submission of the learned counsel for the Appellants:
10. Learned Senior counsel for the appellants has taken the following grounds
for interfering with the finding recorded by the learned trial court in the
impugned judgments:
(i) The prosecution has miserably failed to substantiate the charge even if
the testimony of the entire prosecution witnesses will be taken into
consideration together.
(ii) The learned trial court has relied emphatically upon the testimony of
P.W.-5, namely, Bilaso Devi [P.W.-3 in Criminal Appeal (DB) No.
5 Cr. Appeal (DB) No. 206 of 1996 (R)
with
185 of 2020] who has been considered to be eye witness and based
upon her testimony, the prosecution has been accepted by the learned
trial court but if the testimony of P.W.-5, Bilaso Devi will be taken
into consideration, she herself has not disclosed the name of the
appellants of these Criminal Appeals to any other prosecution
witnesses rather she had first time had taken the name of these
appellants before the Court as it would be evident from testimony of
P.W.3 namely Fakira Sao (in Cr. appeal 206 of 1996) who had
specifically stated that when he was taking the victim Bilaso Devi to
Hospital on his scooter, he enquired from her about the name of
accused but she had stated that the persons who have committed the
murder were dacoits and she has not identified any of them.
(iii) The ground has been taken that the learned trial court has considered
the testimony of P.W.-5, Bilaso Devi to be an eye witness merely
relying upon her testimony as recorded in the examination in chief
leaving aside the statement of other prosecution witness as P.W.3 and
P.W.2 (Cr. Appeal 206 of 1996) has specifically stated that victim
Bilaso Devi was conscious when they were carried her to Hospital and
when they asked her about the accused she had stated that the persons
who have committed the murder were dacoits and she has not
identified any of them.
(iv) The testimony of P.W.-2 and 3 of Criminal Appeal (DB) No. 206 of
1996 (R), namely, Sanjay Sao and Fakira Sao respectively have been
discarded by the learned trial court wherein these witnesses have also
6 Cr. Appeal (DB) No. 206 of 1996 (R)
with
deposed that the P.W.-5 has disclosed to them that the attackers were
dacoits and name of these appellants have not been disclosed to them.
(v) The argument has been advanced that the statement of P.W.-5, Bilaso
Devi was recorded after lapse of 16-17 days, i.e., only for the purpose
of maintaining the case since in the FIR, there is no reference of the
name of these appellants alleging therein commission of murder.
(vi) It has also been submitted that the learned trial court has not
considered the testimony of P.W.-3, Fakira Sao, wherein he has stated
that while the P.W.-5, Bilaso Devi was carried to the hospital, the
husband, namely, Ramjeet Mahto has not come and at that time, P.W.-
5, Bilaso Devi was fully conscious but the name of these appellants
has not been disclosed.
The argument has been advanced that the P.W.-5, Bilaso Devi
in place has said that she became senseless but if the testimony of
P.W.-2, Sanjay Sao and P.W.-3, Fakira Sao will be taken into
consideration then it would be evident that the P.W.-5, Bilaso Devi
had not become unconscious immediately after seeing the dead body
of her daughter rather she had been carried to hospital by the P.W.-2,
Sanjay Sao and P.W.-3, Fakira Sao over scooter and at that time, the
P.W.-5, Bilsao Devi was fully conscious and even she was conscious
while getting admitted in the hospital as would be evident from the
testimony of P.W.-2, Sanjay Sao and P.W.-3, Fakira Sao.
(vii) So far as the appellant of Criminal Appeal (DB) No. 185 of 2020 is
concerned, the learned senior counsel for the appellants has argued
7 Cr. Appeal (DB) No. 206 of 1996 (R)
with
that if the testimony which has been recorded of P.W.-3, Bilaso Devi
in Criminal Appeal (DB) No. 185 of 2020 [P.W.-5 in Criminal Appeal
(DB) No. 206 of 1996 (R)], will be taken into consideration, she has
only disclosed the name of the present appellant [appellant of
Criminal Appeal (DB) No. 185 of 2020] without disclosing any
attributability said to be committed by the appellant of Criminal
Appeal (DB) No. 185 of 2020.
(viii) It has been contended that the conviction of the appellant of Criminal
Appeal (DB) No. 185 of 2020 is with the aid of Section 34 of IPC but
it is settled position of law that the conviction if passed by taking the
aid of Section 34 of IPC, the specific attributability is required to be
there and merely on the basis of the presence of one or the other, there
cannot be any conviction by taking aid of Section 34 of IPC. The
aforesaid aspect of the matter has not been taken into consideration by
the learned trial court.
(ix) It has been contended that the name of the appellant of Criminal
Appeal (DB) No. 185 of 2020 has been taken by the P.W.-3 of
Criminal Appeal (DB) No. 185 of 2020 [P.W.-5 in Criminal Appeal
(DB) No. 206 of 1996 (R)] but without any specific allegation of
commission of murder. Hence, merely on the basis of presumption
and on the ground that the said appellant was present at the place of
occurrence, there cannot be any conviction either under Section 302 or
Section 307 of IPC taking the aid of Section 34 of IPC.
8 Cr. Appeal (DB) No. 206 of 1996 (R)
with
11. The learned counsel for the appellants, based upon the aforesaid grounds,
has submitted that the learned trial court has not taken into consideration of
the aforesaid facts, as such, both the impugned judgments require
interference, hence not sustainable in the eyes of law.
Submission of learned counsel for the Respondent-State:
12. While defending the judgment of conviction and sentence, the learned
Additional Public Prosecutors appearing for the State in both the instant
appeals have raised the following arguments in response to the grounds
raised by the learned counsel for the appellant that:
(i) The P.W.- 5, Bilaso Devi has rightly been considered to be an eye
witnesses since she has narrated the entire story and has fully
supported the prosecution version if her version will be taken into
entirety as recorded in the examination-in-chief
(ii) The statement of P.W.2 and 3 is not fit to be acceptable as P.W.2 had
stated that while they were crossing the river where the scooter was
stopped due to mechanical defects which was corrected by them and
at that time the victim told them about the causing of the incident by
some unknown dacoits but it strange enough that if the victim was in
conscious state of mind then why she had not stated the same fact to
these witnesses at her residence rather she had stated this fact while
they were crossing the river.
(iii) Since informant was not present at the place of occurrence and his
wife i.e surviving victim was not in conscious state therefore while
giving the fardbeyan he had not taken the name of these appellants as
9 Cr. Appeal (DB) No. 206 of 1996 (R)
with
accused , as such the veracity of prosecution case cannot be doubted
on this score rather all the witnesses had supported the circumstances
of the occurrence.
13. The learned Additional Public Prosecutors appearing for the respondent-
State, based upon the aforesaid premise, has submitted that the impugned
judgments do not suffer from any error, hence the instant appeals are fit to
be dismissed.
Analysis
14. We have heard learned counsel for the parties, perused the documents
available on record as also the finding recorded by the trial court in the
impugned judgment.
15. We have also gone through the testimonies of the witnesses as available in
the LCR as also the exhibits appended therewith.
16. Learned trial court, based upon the testimonies of witnesses, has passed the
judgment of conviction and has convicted the appellants under Section
302/34 and 307/34 of Indian Penal Code and sentenced them for maximum
punishment of rigorous imprisonment for life years.
17. This Court before considering the argument advanced on behalf of the
parties is now proceeding to consider the testimonies of witnesses which
have been recorded by learned trial Court. The learned trial court during the
trial has altogether examined nine witnesses in Criminal Appeal (DB) No.
206 of 1996 (R) and six witnesses in Criminal Appeal (DB) No. 185 of 2020
and testimonies of the same are required to referred herein.
10 Cr. Appeal (DB) No. 206 of 1996 (R)
with
Testimonies of the witnesses recorded in Criminal Appeal (DB) No. 206
of 1996 (R):
18. P.W.1 Md. Mustakim, an advocate clerk was formal witness proving first
information report.
19. P.W.2 Sanjay Sao has deposed that the incident happened one and a half
years ago but he unable to recall the exact date or month. He had testified
that at the time of the incident, he was at home. It happened around 6:00-
6:30 in the evening. Fakira Sao and one police constable came to his house.
The police informed him about the incident, thereafter he went to the spot
where a girl had been murdered, Sanju's mother (informant's wife) was
sitting there near the road. Sanju's mother was brought to the hospital on a
scooter with Fakira Sahu. Sanju's mother was injured and was admitted to
the hospital and she was not unconscious. He had further deposed that
While being brought Sanju's mother to the hospital on the scooter, the
scooter broke down near the river and Sanju's mother was dropped into the
river there. After that, two of us crossed the river on the scooter. He had
further testified that at that time, he asked Sanju's mother who had killed,
then She said that the dacoits had killed everyone.
20. In the cross-examination he had stated that all the accused are the step
brothers of informant and accused Shiv Shankar Yadav live in the house
wherein alleged occurrence was caused. The drain water of Mahendra Sao
house goes into the courtyard of the Kodu Mahato, due to which there are
constant quarrels and disputes between the two and a case is also going on.
11 Cr. Appeal (DB) No. 206 of 1996 (R)
with
21. He further testified that when they reached the hospital, Ramjeet Mahato
(informant) also reached the hospital. Ramjeet Mahato himself supported his
wife and made her sit on the stairs of the hospital and took her to the bed. He
had further testified that at that time also Ramjeet's wife(injured victim) was
crying and telling him that the dacoit had killed the daughter and him too.
This witness further testified that accused Shivshankar also reached the
hospital on Awadhesh's scooter and when the doctor prescribed prescription,
he bought the medicine himself.
22. P.W.3 Fakira Sao had deposed that he was at his home at the time of the
incident. It was 6:00 in the evening. He heard Ramjeet Mahato's wife
crying. He went there and saw that Ramjeet Mahato's wife was injured. He
had further deposed that he informed the police station and he and Sanjay
brought the injured to Latehar hospital. He specifically stated that the injured
(Ramjeet Mahato's/informant's wife) was not unconscious. He further
deposed that he found that Ramjeet Mahato's daughter had been murdered.
Additional public prosecutor had drawn attention of this witness to the
statement recorded under 161 Cr.P.C., then he denied that he told the police
that the criminals had badly injured Mahato's wife by hitting her with a sharp
weapon, due to which she was unconscious since the beginning.
23. He further testified in the cross-examination that on hearing the screams of
wife of Ramjeet Mahato he reached the spot, and body of wife of informant
was soaked in blood, on asking she said that her daughter had been killed by
dacoits to whom she did not recognize. He further stated that the injured
victim has crossed the river on her own foot.
12 Cr. Appeal (DB) No. 206 of 1996 (R)
with
24. P.W.4 Dr. Sidhnath is the doctor who had conducted the post-mortem
examination upon the dead of informant's daughter namely Nitla
Kumari.The dead body was brought and identified by Constable No.972
Anirudh Singh and Chowkidar 5/10 Rameshwar Manjhi. The dead body was
brought at postmortem house on 14.11.1989 at 08:30 AM. Postmortem was
conducted on 14.11.1989 at 08:30 AM.
From the PM report it appears rigor mortis present in all the four limbs.
(A) The following antemortem injuries were found :
External Injury
(i) Cervical vertebrae 3rd and 4th cut and fracture were due to sharp
cut multiple three injuries on the neck. Membrane divided and damaged
in the neck due to injury. Spinal cord was also cut through and through
due to the same injury.
(ii) On examination at larynx and trachea the following 2 injuries
were found: Both larynx and trachea were cut through and through due
to same injury.
(iii) Almost all the blood vessels - carotid and vertibral cut in the
cervical region.
(iv) Heart chambers were found empty.
(v) Spleen was found contracted and shrunken due to excessive
haemorrhage through the injury of neck.
(B) Antemortem injury :
13 Cr. Appeal (DB) No. 206 of 1996 (R)
with
Three in number with reasonably sharp injury and heavy stroke on the
neck dividing muscles, blood vessels, cervical vertebrae 3 rd and 4th, trachea
and pharynx leaving the skin and anterior cervical muscles intact.
(C) Opinion :
The injuries are caused by sharp cutting instrument. Stroked heavily
from behind and right side. Three strokes were applied by same instrument
which may be sword also.
Cause of death - Death due to hemorrhage and shock due to injuries
described above. Time, elapsed since death was - Within 24 hours.
25. P.W.5 Bilaso Devi is the informant's wife and injured. She had testified that
this incident happened two and a quarter years ago. It was Monday, the day
of Kartik Purnima and she had gone to harvest paddy with her daughter
Nitla(deceased). Shankar Mahato was also harvesting paddy from his field
there. Shankar Mahato said that right now they are harvesting paddy, in the
evening throat will cut. She had further testified that in the evening, she
came home and made the girl sit at home and went to fetch water. When she
returned with water, she saw that her daughter was struggling and accused
Shiv Shankar jumped out of her house with a sword covered in blood. She
had further testified that when she entered in to house then she saw the
accused Harishankar,Shivlok, Shivnandan, Krishna Mahato and Prasad
Mahato hiding in the house. They all had Gandasha and Dabiya in their
hands. She had further testified that all the accused started hitting her and
injured her by hitting her on the head, left cheek, right shoulder and right
hand. She further deposed that after hitting her, everyone ran away,
14 Cr. Appeal (DB) No. 206 of 1996 (R)
with
thereafter she fell down and somehow got out of the house, then became
unconscious and after that who took her to the hospital, she does not know.
She had further stated that Krishna and Prasad Mahato were brother-in-law
of accused Shiv Shankar.
26. In the cross-examination she had stated that after the beating, she somehow
came out of the house and fell unconscious but she had not stated that after
how much time she fell unconscious and she further stated that she fell
unconscious after an hour or half an hour. She had stated that she regained
consciousness after 17-18 days in Bariatu hospital. She had further stated
that after being discharged from the hospital, she had gone to her maternal
home and the police did not go to take her statement at the hospital. She had
testified that she had given statement to the police at her maika and after
two-four days of giving the said statement to the police, her statement was
recorded in the court.
27. P.W.6 Ramjeet Mahato is the husband of P.W. 5 Bilaso Devi who is injured
eyewitness and FIR was instituted on the basis of his Fardbeyan. He had
stated that this incident is of Monday, two and a half years ago, in the
month of Agahan, when he returns from the jungle, he did not see the
family. Phuleshwar said that there was a ruckus in his house., He had further
testified that he found his daughter dead inside the house and he also saw
cuts on his wife's head and body. He had stated the four accused persons are
his step brothers, and he had doubt on them as there is a dispute over land
and even before this incident accused had filed a case of fire.
15 Cr. Appeal (DB) No. 206 of 1996 (R)
with
28. He had deposed in the cross-examination that at the time Phuleshwar had
told was 6 o'clock, it was the evening and he saw his wife lying on Fakira's
scooter and from a distance he saw his wife's wound in the hospital. He had
further stated that Shiv Shankar had not come to the hospital, he first saw his
wife's wound in the hospital, the police came to the hospital and took his
statement.
29. P.W.7 Sanju Kumari daughter of the informant had deposed that this
incident was happened two and half years ago. It was the month of Aghan. It
was Monday at 6:00 pm. She had testified that at that time she was grinding
spices in her house and at that time she heard the sound of someone on the
north side of the house then she lit a lamp and looked there but there was
nothing at home. She further testified that her sister Nitla(deceased) was
inside the house and after grinding the spices, she went to the camp of the
police to cook food wherein she has been informed about the alleged
occurrence and when she reached the house, she saw her mother injured and
bleeding. After that, she went inside the house and saw Nitla dead.
30. She had further testified that when she was grinding spices in the house, she
heard the sound coming from the field of Rahar, which was adjacent to the
wall of my house thereafter she came out with the lamp and looking around,
but she could not see anything because it was very dark. There was only my
sister Nitla (deceased) in the house and her mother had gone out to fetch
water.
31. P.W.8 Dr. Bihwal Prasad Bhagat he had examined Bilso Devi (injured
victim) on 13.11.1989 and found following injuries:
16 Cr. Appeal (DB) No. 206 of 1996 (R)
with
a. Incised wound on the middle of the head - 8" x 2" X 2" in
depth, cutting the skull bone
b. Incised wound on the left shoulder - 4" x 5" X 3", cutting the
acetabulum
c. Incised wound on the left cheek cutting the mandible bone.
d. Incised wound on right arm - 3" x 2" X 1",
e. Incised wound on right knee - 1" x ½" X ½ "
This witness in his cross-examination had categorically stated that injured
was conscious and talking. Further he had stated that he is saying on the
basis of his memory. He further stated that when a patient is brought in
unconscious state then we mention this fact at the bottom of the injury
report.
32. P.W.9 Balmiki Prasad Singh, the investigating officer and he had deposed
that on receiving information from the sub-divisional hospital, he came to
the sub-divisional hospital where the statement of Ramjeet Mahato
informant was recorded. The statement was read out and read out correctly.
Ramjeet Mahato put his left thumb impression. This is the statement which
is in his handwriting and signature, to be marked on the exhibit. He had
deposed that he sent it to the police station for investigation and thereafter,
prepared the documents for the injury report of the injured and gave it to the
doctor. Recorded the statement of Fakir Shah present in the hospital. Left for
the scene of incident. Prepared the death review report of the deceased Nitla
Kumari at the scene of incident. This is the written copy of the death review
report which is in his handwriting and it was prepared along with the
17 Cr. Appeal (DB) No. 206 of 1996 (R)
with
original copy with carbon. Mark exhibit -5. He further testified that Blood
stained soil was seized from the incident spot, seizure list was prepared and
this list is in his handwriting and the witnesses also signed in front of him. In
para 15 of the cross examination, he had deposed that police have been
informed about the alleged occurrence from injured Bilaso Devi but the
name of the assailant has not been divulged.
Testimonies of the witnesses recorded in Criminal Appeal (DB) No. 185
of 2020 are as under:
33. P.W.-1 Fakira Sao stated that at about 07:00 P.M on hearing cries he had
gone to the house of Bilaso Devi who was injured. He intimated the matter
to the Police Chauki, but they scolded him. After some time, he again went
there, where more persons were present and saw the said Bilaso Devi
injured. She had received injury by some weapon. He asked regarding it but
she did not disclose as to how she received injury. Bilaso Devi was outside
her house. When he entered her house, he could not found her daughter
Nitla Kumari. On the next day, it was heard that she was killed. He had
seen the dead body having slit neck, but cannot say how she was killed. He
further stated that the informant Ramjeet Yadav is dead. Another daughter
Kamali Kumari is also dead.
34. P.W.2 Sanjay Kumar stated, that on hulla he went to the house of Ramjeet at
about 08:00 P.M and found wife of Ramjeet in injured condition. She was
partly unconscious. She was called to hospital where she was treated then
he returned. He cannot say how injuries were caused.
35. P.W.3 Bilaso Devi, the injured, where she stated that the incident happened
30 years back. She returned after harvesting paddy. Her daughter Niki was
18 Cr. Appeal (DB) No. 206 of 1996 (R)
with
preparing for food. She had gone to fetch water and when she returned
could found that Shiv Shankar, Hari Shankar, Shivlok, Shivnandan (all
convicted) and Prasad [the present appellant of Criminal Appeal (DB) No.
185 of 2020] are hiding in her house when she entered the house, they
started charging upon her from behind. She got injury on her left shoulder,
left jaw, left head, right hand arm, right knee. She claimed that she was
assaulted by 'Dabiya' (A sharp weapon). Her daughter was killed near the
stove. Her neck was slit. After committing the offence, the accused persons
fled away. While she was crying P.W.1, Fakira Sao came but she became
senseless. After about 04 days she got her senses at Bariyatu hospital.
According to her the genesis that she allegedly had purchased the lands of
her Bhaisur, Lal Jee Yadav for which the accused Shiv Shankar had come
to assault her not to purchase the land but had purchased it and only
because of it the incident happened. She claims that the accused Shiv
Shankar, Hari Shankar, Shivlok, Shivnandan are their step brother-in-law
(Dewar) and Prasad [the present appellant of Criminal Appeal (DB) No.
185 of 2020] is the brother-in-law of Shiv Shankar. Regarding
identification she claimed that the accused might be Prasad but much time
has elapsed, there are changes in the face. She also claimed that after the
occurrence she is living at her parents' house. In cross-examination she
stated that the Sala of Shiv Shankar resides at Tikuliya. The accused Shiv
Shankar, Hari Shankar, Shivlok, Shivnandan [the appellants of Criminal
Appeal (DB) No. 206 of 1996 (R)] would have been benefited by her
assault. Her daughter was killed before she returned with water. She further
asserts that after the occurrence her another daughter was also killed. The
19 Cr. Appeal (DB) No. 206 of 1996 (R)
with
said killing was also because of land dispute in which the son of Chalitar
Thakur and Birbal were named. She is not recollecting that after how many
days of occurrence the police had inquired her. She also cannot say as to
after which time she was brought to hospital. She was treated at Bariyatu
Hospital. She also stated that she regained senses after about four days. She
cannot say if she had named any one in her earlier statement. She further
states that in her previous evidence she has stated that she had purchased
land but was not given share, but is not recollecting that had stated
regarding enmity with father-in-law named Kadu Mahto.
36. P.W.4 Sanju Devi, the daughter of P.W.3, stated that she had returned after
harvesting paddy along with her mother and younger sister. She had gone
for 'Grinding Spices' at the house of Hawaldar Saheb. At that time, she
was informed by one co-villager Thakurchand to return to her house, her
mother may be dead meet her. She went running and found her mother
lying outside the house. She was having injury on head, jaw, left shoulder,
right hand and knee and it appears that she was assaulted by some weapon.
She called her mother thrice but she was not responding. She had seen Shiv
Shankar, Hari Shankar, Shivlok, Shiv Nandan and Prasad are coming out
from their house when she entered the house then found her sister lying
dead. Her neck was slit, head broken. The police have come in the night
and took the dead body. Her mother was also taken for treatment when she
recovered sense then she had disclosed all the five accused persons. She
has recorded her statement before the Police. She had identified the accused
in dock. She also stated that the incident happened because of land dispute.
She also stated that the accused is Sala of Shiv Shankar. She admits that
20 Cr. Appeal (DB) No. 206 of 1996 (R)
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she had earlier been examined in this case but it is not a fact that in that
evidence she has not disclosed the name of all accused persons. She also
disputes the suggestion that in that evidence she has not disclosed if she
had seen the accused coming out from the house. She disputes that in her
earlier statement she had stated that when she returned, she could not meet
her mother. The mother had gone to hospital and she has not come to meet
her mother. She also disputes that she had gone to her Nanihal to meet the
mother about a month later along with her aunt and no villagers
accompanied her is also disputed.
37. P.W.5 Dr. Jamil Ahmed, Medical Officer, Sadar Hospital, Latehar. He
deposed that on dated 14.11.1989, he was doing his Post Graduation at
R.M.C.H., Ranchi. He presently is posted as Medical Officer, District
Hospital, Latehar since 2016. He had no opportunity to work with the Dr.
Sidhnath who had conducted the postmortem dated 14.11.1989 as written
and signed by the said Dr. Sidhnath. The postmortem report will show that
the said Dr. Sidhnath had conducted the autopsy on the dead body of Nitla
Kumari, aged about 06 years, Female child, D/o Ramjeet Mahto. The dead
body was brought and identified by Constable No.972 Anirudh Singh and
Chowkidar 3/10 Rameshwar Manjhi. The dead body was brought at
postmortem house on 14.11.1989 at 08:30 AM. Postmortem was conducted
on 14.11.1989 at 08:30 AM.
From the PM report it appears rigor mortis present in all the four limbs.
(A) The following antemortem injuries were found :
External Injury
21 Cr. Appeal (DB) No. 206 of 1996 (R)
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(vi) Cervical 3rd and 4th vertebrae cut and fracture due to sharp cut
multiple three injuries. Membrane divided and damaged in the cervical
region due to injury. Spinal cord cut through and through.
(vii) Larynx and trachea cut through and through.
(viii) Almost all the blood vessels - carotid and vertebral cut in the
cervical region.
(D) Antemortem injury :
Three in number with reasonably sharp injury and heavy stroke on the
neck dividing muscles, blood vessels, cervical vertebrae 3rd and 4th, trachea
and pharynx leaving the skin and anterior cervical muscles intact.
(E) Opinion :
The injuries are caused from sharp cutting instrument. Stroke heavily
from behind and right side. Three strokes with the same instrument has
been applied cutting all blood vessels cervical vertebrae 3 rd and 4th and
spinal cord, trachea pharynx leaving only skin and anterior cervical
muscles intact.
Cause of death - Death due to hemorrhage and shock due to injuries
described above.
Time elapsed since death - Within 24 hours.
(2) On identification, the document is marked exhibit1.
(3) He also endorses the opinion taken by Dr. Sidhnath, and states that he
also could have been of the same view if he would have conducted the
postmortem.
22 Cr. Appeal (DB) No. 206 of 1996 (R)
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(4) One injury report is put up before him by the Ld. P.P. I/c it will show
that one patient Bilaso Devi, W/o Ramjeet Mahto has been treated by the
Doctor and has found the following injuries
(i) Incised wound on the middle of head - 8" x 2" X 2", cutting the
skull bone - grievous, sharp cutting instrument.
(ii) Incised wound on left shoulder - 4" x 5" X 3", cutting
acetabulam - grievous, sharp cutting instrument.
(iii) Incised wound on left cheek cutting the mandible by sharp
cutting instrument - grievous.
(iv) Incised wound on right arm - 3" x 2" X 1", sharp cutting
instrument - simple.
(v) Incised wound on right knee - 1" x ½" X ½ ", sharp cutting
instrument.
Age within 06 hours.
I/M - One mole on the right clavicle.
(5) On identification, the document is marked exhibit2.
(6) He also endorsed the opinion taken by doctor, if he would have seen
and examined the patient regarding the injuries and its nature.
38. P.W.6 Firoz Imam, Head clerk, Civil court, Latehar has proved the custody
of the F.I.R and the inquest report in reference to Latehar P.S. case
No.114/89 and on proof of custody the documents are marked Ext. 3 & 4.
39. It needs to refer herein that the appellants of Criminal Appeal (DB) No. 206
of 1996 (R) have been apprehended immediately after the institution of the
23 Cr. Appeal (DB) No. 206 of 1996 (R)
with
prosecution case but the appellant of Criminal Appeal (DB) No. 185 of 2020
has not been apprehended rather he has absconded and after lapse of about
more than 30 years, he has been apprehended and thereafter, the trial against
him has commenced, meaning thereby, the trial had been split up in between
the appellants of both the cases.
40. It is further relevant to refer herein that the prosecution has examined
altogether nine witnesses in Sessions Trial No. 232 of 1991, subject matter
of Criminal Appeal (DB) No. 206 of 1996 (R) wherein P.W.-5, Bilaso Devi
has been considered to be an eye witness which has been taken note by the
learned trial court in the impugned judgment.
41. The said Bilaso Devi had been examined as P.W.-3 in Sessions Trial No.
232A of 1991, subject matter of Criminal Appeal (DB) No. 185 of 2020 and
P.W.-2 and P.W.-3 of Criminal Appeal (DB) No. 206 of 1996 (R) have been
examined as P.W.-2 and P.W.-1 respectively in Criminal Appeal (DB) No.
185 of 2020.
42. The informant Ramjeet Mahto had died the day when the trial in connection
with Sessions Trial No. 232A of 1991 had commenced, therefore, only six
witnesses have been examined in the said sessions trial, subject matter of
Criminal Appeal (DB) No. 185 of 2020.
43. The evidence of P.W.-5, P.W.-2 and P.W.-3 of Sessions Trial No. 232 of
1991 have been taken note herein and the testimony of said P.W.-5 of
Criminal Appeal (DB) No. 206 of 1996 (R) who has been examined as P.W.-
3 in Sessions Trial No. 232A of 1991 subject matter of Criminal Appeal
(DB) No. 185 of 2020 has also been taken note herein.
24 Cr. Appeal (DB) No. 206 of 1996 (R)
with
44. This Court, after having considered the testimony of witnesses is now
proceeding to consider the argument advanced by learned counsel for the
appellants.
45. The ground has been agitated on behalf of appellants that the learned trial
court has relied emphatically upon the testimony of P.W.-5, namely, Bilaso
Devi [P.W.-3 in Criminal Appeal (DB) No. 185 of 2020] who has been
considered to be an eye-witness and based upon her testimony, the
prosecution case has been accepted by the learned trial court but if the
testimony of P.W.-5, Bilaso Devi will be taken into consideration, she
herself has not disclosed the name of the appellants of these Criminal
Appeals to any other prosecution witnesses rather she had first time had
taken the name of these appellants before the Court as it would be evident
from testimony of P.W.3 namely Fakira Sao (in Cr. appeal 206 of 1996) who
had specifically stated that when he was taking the victim Bilaso Devi to
Hospital on his scooter, then she had stated that the persons who have
committed the murder were dacoits and she has not identified any of them.
46. It has further been contended that learned trial court has considered the
testimony of P.W.-5, Bilaso Devi to be an eye witness merely relying upon
her testimony as recorded in the examination in chief, leaving aside the
statement of other prosecution witness as P.W.3 and P.W.2 (Cr. Appeal 206
of 1996) who have specifically stated that victim Bilaso Devi was conscious
when they were carried her to Hospital and when they asked him about the
accused she had stated that the persons who have committed the murder
were dacoits and she has not identified any of them.
25 Cr. Appeal (DB) No. 206 of 1996 (R)
with
47. Per contra the learned APP for the state has contended that the P.W.- 5,
Bilaso Devi has rightly been considered to be an eye witnesses since she has
narrated the entire story and has fully supported the prosecution version if
her version will be taken into entirety as recorded in the examination-in-
chief.
48. Further it has been contended that The statement of P.W.2 and 3 is not fit to
be acceptable as P.W.2 had stated that while they were crossing the river
where the scooter was stopped due to mechanical defects which was
corrected by them and at that time the victim told them about the causing of
the incident by some unknown dacoits but it strange enough that if the
victim was in conscious state of mind then why she had not stated the same
fact to these witnesses at her residence rather she had stated this fact while
they were crossing the river.
49. In the backdrop of the arguments, of the learned counsel for the parties, and
in the light of discussion of the testimonies of the witnesses this Court in the
instant case is to consider following issues: -
(i) Whether the material as has come in course of trial is sufficient to
attract the offence committed under alleged Sections of the Indian
Penal Code?
(ii) Whether the only sole testimony of an eyewitness is sufficient enough
to prove the alleged charges against the appellants beyond all
reasonable doubt.
(iii) Whether the appellants are entitled for acquittal in absence of other
cogent evidences?
26 Cr. Appeal (DB) No. 206 of 1996 (R)
with
50. Since all the aforesaid issues are inextricably interlinked, the same are being
decided hereinbelow by considering them together.
51. This Court, in order to appreciate the submissions advanced on behalf of the
appellants with respect to the culpability of the appellants, for the alleged
offence vis-à-vis the evidences adduced on behalf of the parties, and further
answering the issues as referred above, deems it fit and proper to discuss
settled position of law which has been settled by the Hon'ble Apex Court.
52. The learned counsel for the appellants has contended that the learned trial
court even in absence of corroboration of the testimony of P.W.5 who is
self-proclaimed sole eyewitness has convicted the appellants which is bad in
the eyes of law.
53. In the aforesaid context, it is settled proposition of law that the judgment of
conviction can be passed on the basis of the testimony of sole eyewitness but
the testimony of said witness should be trustworthy and inspire confidence
in the mind of the Court.
54. There is no legal impediment in convicting a person on the sole testimony of
a single witness. That is the logic of Section 134 of the Evidence Act, 1872.
But if there are doubts about the testimony, the courts will insist on
corroboration. In fact, it is not the number, the quantity, but the quality that
is material. The time-honoured principle is that evidence has to be weighed
and not counted. The test is whether the evidence has a ring of truth, is
cogent, credible and trustworthy, or otherwise, reference in this regard may
be taken by the judgment rendered by Hon'ble Apex Court in the case
27 Cr. Appeal (DB) No. 206 of 1996 (R)
with
of Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 paragraphs 30
to 34 of the said judgment are being referred hereunder as :-
"30. Shri Bagga has also submitted that there was sole testimony of
Sujit Mondal, PW 1, and the rest i.e. depositions of PW 2 to PW 8,
could be treated merely as hearsay. The same cannot be relied upon
for conviction.
31. In Sunil Kumar v. State (Govt. of NCT of Delhi) this Court
repelled a similar submission observing that: (SCC p. 371, para 9)
"9. ... as a general rule the court can and may act on the testimony of
a single witness provided he is wholly reliable. There is no legal
impediment in convicting a person on the sole testimony of a single
witness. That is the logic of Section 134 of the Evidence Act, 1872.
But, if there are doubts about the testimony the courts will insist on
corroboration."
In fact, it is not the number, the quantity, but the quality that is
material. The time-honoured principle is that evidence has to be
weighed and not counted. The test is whether the evidence has a ring
of truth, is cogent, credible and trustworthy, or otherwise.
32. In Namdeo v. State of Maharashtra this Court reiterated the
similar view observing that it is the quality and not the quantity of
evidence which is necessary for proving or disproving a fact. The
legal system has laid emphasis on value, weight and quality of
evidence rather than on quantity, multiplicity or plurality of witnesses.
It is, therefore, open to a competent court to fully and completely rely
on a solitary witness and record conviction. Conversely, it may acquit
the accused in spite of testimony of several witnesses if it is not
satisfied about the quality of evidence.
33. In Kunju v. State of T.N., a similar view has been reiterated
placing reliance on various earlier judgments of this Court
including Jagdish Prasad v. State of M.P. and Vadivelu Thevar v.
State of Madras.
34. Thus, in view of the above, the bald contention made by Shri
Bagga that no conviction can be recorded in case of a solitary
eyewitness has no force and is negatived accordingly."
55. Likewise, the Hon'ble Apex Court in the case of Kuriya and another vs.
State of Rajasthan, (2012) 10 SCC 433 has held as under: -
28 Cr. Appeal (DB) No. 206 of 1996 (R)
with
" 33. ---The Court has stated the principle that, as a general rule, the
Court can and may act on the testimony of a single eyewitness provided
he is wholly reliable and base the conviction on the testimony of such
sole eyewitness. There is no legal impediment in convicting a person on
the sole testimony of a single witness."
56. The Hon'ble Apex Court in the case of Kalu @ Amit vs. State of Haryana,
(2012) 8 SCC 34 held as under:-
"11. We find no infirmity in the judgment of the High Court which has
rightly affirmed the trial court's view. It is true that the accused have
managed to win over the complainant PW 4 Karambir Yadav, but the
evidence of PW 5 Ram Chander Yadav bears out the prosecution case.
It is well settled that conviction can be based on the evidence of a sole
eyewitness if his evidence inspires confidence. This witness has
meticulously narrated the incident and supported the prosecution case.
We find him to be a reliable witness."
57. The Hon'ble Apex Court in case of Sheelam Ramesh v. State of A.P.,
(1999) 8 SCC 369 in Para -18 held as follows:-
"18. According to learned counsel for the accused appellants, though PW
3 has deposed that 10-15 persons were in the vicinity at the time of
occurrence, no independent witness was examined by the prosecution.
There is nothing on evidence to show that there was any other eyewitness
to the occurrence. Having examined all the eyewitnesses even if other
persons present nearby were not examined, the evidence of the
eyewitnesses cannot be discarded. Courts are concerned with quality and
not with quantity of evidence and in a criminal trial, conviction can be
based on the sole evidence of a witness if it inspires confidence."
58. It is thus evident from the aforesaid settled position of law that the judgment
of conviction can be passed on the basis of the testimony of sole eyewitness
but if there are doubts about the testimony of the such sole eyewitness, the
courts will insist on corroboration and the test is whether the evidence has a
ring of truth, is cogent, credible and trustworthy, or otherwise,
29 Cr. Appeal (DB) No. 206 of 1996 (R)
with
59. At this juncture this Court thinks fit to revisit the testimony of the witnesses
particularly the injured eyewitness P.W.5 in the backdrop of aforesaid settled
legal proposition.
60. Admittedly herein the case of the prosecution is based upon the testimony of
injured eye-witness P.W.5 wife of the informant. In her testimony she has
testified that in the evening, she came home and made the girl sit at home
and went to fetch water. When she returned with water, she saw that her
daughter was wriggling and accused Shiv Shankar jumped out of her house
with a sword stained in blood. She had further testified that when she entered
in to house then she saw the accused Harishankar, Shivlok, Shivnandan,
Krishna Mahato and Prasad Mahato hiding in the house. They all had
Gandasha and Dabiya in their hands. She had further testified that all the
accused started hitting her and injured her by hitting her on the head, left
cheek, right shoulder and right hand. She further deposed that after hitting
her, everyone ran away, thereafter she fell down and somehow got out of the
house, then became unconscious and after that who took her to the hospital,
she does not know.
61. At this juncture it would be apt to refer herein the relevant part of the
testimony of P.W.2 Sanjay Sao who had taken the injured victim to the
hospital for treatment. In his testimony he had stated that Manju's mother
(Injured Eyewitness and wife of the informant) was brought to the hospital
on a scooter with Fakira Sao. Manju's mother was injured and was admitted
to the hospital and she was not unconscious. He had further deposed that
while being brought Sanju's mother to the hospital on the scooter, the
scooter broke down near the river and Sanju's mother was dropped into the
30 Cr. Appeal (DB) No. 206 of 1996 (R)
with
river there. After that, two of us crossed the river on the scooter. He had
further testified that at that time, he asked Manju's mother who had killed,
then She said that the dacoits had killed everyone.
62. He further testified in the cross examination that when they reached the
hospital, Ramjeet Mahato (informant) also reached the hospital. Ramjeet
Mahato himself supported his wife and made her sit on the stairs of the
hospital and took her to the bed. He had further testified that at that time also
Ramjeet's wife (injured victim) was crying and telling him that the dacoit
had killed the daughter and him too. This witness further testified that
accused Shivshankar also reached the hospital on Awadhesh's scooter and
when the doctor prescribed prescription, he bought the medicine himself.
63. Thus, it is apparent from the testimony aforesaid that the injured eye-witness
was not unconscious rather she was fully conscious and when she was asked
about the accused/assailants she had stated that the dacoits had killed
everyone. It needs to refer herein that admittedly all the accused persons
were known to injured eyewitness (P.W.5) since they are the step brother
and relative of her husband then in such scenario question arises herein that
why the injured eyewitness (P.W.5) had not taken the name of any accused
persons rather she had stated that unknown Dacoits has caused the alleged
occurrence.
64. Further it is evident from the testimony of P.W.2 that at the hospital
Ramjeet's wife (injured victim) was crying and telling him that the dacoit
had killed the daughter and him too. Therefore, it has well been established
31 Cr. Appeal (DB) No. 206 of 1996 (R)
with
that injured eyewitness was fully conscious when she reached at the hospital
along with P.W.2 and 3.
65. Further the testimony of P.W.2 has fully been substantiated by the testimony
of the P.W.3 Fakira Sao on whose scooter the injured eyewitness was carried
to the hospital. Admittedly it has come in the testimony of the P.W.6
informant that his injured wife was carried to hospital by Fakira Sao on the
scooter along with P.W.3. This witness has testified that he and Sanjay
(P.W.2) brought the injured (P.W.5) to Latehar hospital. He specifically
stated that the injured (Ranjit Mahato's/informant's wife) was not
unconscious
66. He further testified in the cross-examination that on hearing the screams of
wife of Ranjeet Mahato(informant) he reached the spot, and body of wife of
informant was soaked in blood and on asking she said that she had been
assaulted by dacoits to whom she did not recognize. He further stated that
the injured victim (P.W.5) has crossed the river on her own foot.
67. Thus, from the aforesaid testimony of this witness it is apparent that injured
victim has not taken the name of accused appellants and further she was
fully conscious when she was carried to hospital by P.W.2 and P.W.3.
68. Further at this juncture it would be apt to discuss the relevant paragraph of
the testimony of P.W.8 the doctor who had examined the injured victim
(P.W.5). In his cross-examination he had categorically testified that injured
victim was in her sense and talking, when he had examined her. Further it is
evident from the testimony of P.W.9 the investigating officer wherein at
paragraph 15 he had stated that police have been informed about the alleged
32 Cr. Appeal (DB) No. 206 of 1996 (R)
with
occurrence from injured Bilaso Devi but the name of the assailant has not
been divulged.
69. Thus, from the aforesaid it is evident that testimony of so-called injured
eyewitness has not been corroborated by the other prosecution witness
available on record. It needs to refer herein that P.W.2 and 3 is the
independent witnesses and it is hard to say that they have given their
testimony with an ulterior motive. Further they have not been declared
hostile/tendered by the prosecution rather their testimony has been supported
by the testimony of the informant (P.W.6).
70. The law is settled that evidence of an eye-witness should be of very sterling
quality and caliber and it should not only instil confidence in the court to
accept the same but it should also be a version of such nature that can be
accepted at its face value. The Hon'ble Apex Court in the case of Rai
Sandeep @ Deepu alias Deepu V. State (NCT of Delhi) (2012) 8 SCC 21
has observed that the "sterling witness" should be of very high quality and
Caliber whose version should, therefore, be unassailable. The court
considering the version of such witness should be in a position to accept it
for its face value without any hesitation. What would be relevant is the
truthfulness of the statement made by such a witness. It should be natural
and consistent with the case of the prosecution of the accused. The relevant
paragraph of the aforesaid Judgment is being quoted as under:
"22. In our considered opinion, the "sterling witness" should be of
very high quality and caliber whose version should, therefore, be
unassailable. The court considering the version of such witness should
be in a position to accept it for its face value without any hesitation.
33 Cr. Appeal (DB) No. 206 of 1996 (R)
with
To test the quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more relevant
would be the consistency of the statement right from the starting point
till the end, namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be natural and
consistent with the case of the prosecution qua the accused. There
should not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-examination of
any length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the factum of the
occurrence, the persons involved, as well as the sequence of it. Such a
version should have co-relation with each and every one of other
supporting material such as the recoveries made, the weapons used,
the manner of offence committed, the scientific evidence and the
expert opinion. The said version should consistently match with the
version of every other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial evidence where
there should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as well as all other
such similar tests to be applied, can it be held that such a witness can
be called as a "sterling witness" whose version can be accepted by
the court without any corroboration and based on which the guilty
can be punished. To be more precise, the version of the said witness
on the core spectrum of the crime should remain intact while all other
attendant materials, namely, oral, documentary and material objects
should match the said version in material particulars in order to
enable the court trying the offence to rely on the core version to sieve
34 Cr. Appeal (DB) No. 206 of 1996 (R)
with
the other supporting materials for holding the offender guilty of the
charge alleged."
71. Thus, on the basis of the discussion made herein above this Court is of the
considered view that testimony of the victim is not fully reliable and
prosecution has failed in its duty to prove the charges against the appellants
beyond reasonable doubt.
72. The law is also settled that merely on the basis of presumption and
conjecture, there cannot be conviction of a person snatching away the right
to life as directed under Article 21 of the Constitution of India, rather the
principle is that the conviction is to be based upon the evidence as produced
by the prosecution witness if found to be proved beyond all reasonable
doubt.
73. The Hon'ble Apex Court in catena of decision has propounded the
proposition that in the criminal trial, there cannot be any conviction if the
charge is not being proved beyond all reasonable doubts, as has been held in
the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in
(2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under:-
"22. The amount of doubt which the Court would entertain
regarding the complicity of the appellants in this case is much
more than the level of reasonable doubt. We are aware that
acquitting the accused in a case of this nature is not a matter of
satisfaction for all concerned. At the same time we remind
ourselves of the time-tested rule that acquittal of a guilty person
should be preferred to conviction of an innocent person. Unless
the prosecution establishes the guilt of the accused beyond
reasonable doubt a conviction cannot be passed on the accused.
A criminal court cannot afford to deprive liberty of the
appellants, lifelong liberty, without having at least a reasonable
level of certainty that the appellants were the real culprits. We
35 Cr. Appeal (DB) No. 206 of 1996 (R)
with
really entertain doubt about the involvement of the appellants in
the crime."
74. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs.
State of Karnataka, reported in (2017) 13 SCC 98, has held at paragraph-26
as under:-
"26. Having gone through the evidence of the prosecution
witnesses and the findings recorded by the High Court we feel
that the High Court has failed to understand the fact that the
guilt of the accused has to be proved beyond reasonable doubt
and this is a classic case where at each and every stage of the
trial, there were lapses on the part of the investigating agency
and the evidence of the witnesses is not trustworthy which can
never be a basis for conviction. The basic principle of criminal
jurisprudence is that the accused is presumed to be innocent
until his guilt is proved beyond reasonable doubt."
75. It requires to refer herein that the principle of 'benefit of doubt' belongs
exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of
doubt' can be invoked when there is reasonable doubt regarding the guilt of
the accused, reference in this regard may be made to the judgment rendered
by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath
& Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-
7 as under: -
"7. The High Court had failed to consider the
implication of the evidence of the two eyewitnesses on
the complicity of Bhagirath particularly when the High
Court found their evidence reliable. The benefit of
doubt was given to Bhagirath "as a matter of abundant
caution". Unfortunately, the High Court did not point
out the area where there is such a doubt. Any restraint
by way of abundant caution need not be entangled with
the concept of the benefit of doubt. Abundant caution is
36 Cr. Appeal (DB) No. 206 of 1996 (R)
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always desirable in all spheres of human activity. But
the principle of benefit of doubt belongs exclusively to
criminal jurisprudence. The pristine doctrine of benefit
of doubt can be invoked when there is reasonable
doubt regarding the guilt of the accused. It is the
reasonable doubt which a conscientious judicial mind
entertains on a conspectus of the entire evidence that
the accused might not have committed the offence,
which affords the benefit to the accused at the end of
the criminal trial. Benefit of doubt is not a legal dosage
to be administered at every segment of the evidence,
but an advantage to be afforded to the accused at the
final end after consideration of the entire evidence, if
the Judge conscientiously and reasonably entertains
doubt regarding the guilt of the accused."
76. Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of
Karnataka (Supra) at paragraph- 32 and 33 has held as under:-
"32. --- --- The minor variations and contradictions in
the evidence of the eyewitnesses will not tilt the benefit
of doubt in favour of the accused but when the
contradictions in the evidence of the prosecution
witnesses proves to be fatal to the prosecution case
then those contradictions go to the root of the matter
and in such cases the accused gets the benefit of doubt.
33. It is the duty of the Court to consider the
trustworthiness of evidence on record. As said by
Bentham, "witnesses are the eyes and ears of justice.---
-
77. This Court applying the aforesaid principles and based upon the discussion
made herein above, is of the view that the judgment of conviction of the
37 Cr. Appeal (DB) No. 206 of 1996 (R)
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appellants passed by the learned trial court based upon the testimony of the
P.W.5 is not fit to be acceptable.
78. Taking into consideration the testimony of P.W.-5 of Sessions Trial No. 232
of 1991 who has been considered as an eye witness as also taking into
consideration the testimony of P.W.-2 and P.W.-3 of the said sessions trial
this Court is of the view that the judgment passed by the learned trial court
in Sessions Trial No. 232 of 1991 requires interference by this Court.
79. Accordingly, the impugned judgment of conviction dated 08.10.1996 and
order of sentence dated 09.10.1996 passed by learned 4th Additional Sessions
Judge, Palamau at Daltonganj, in Sessions Trial No. 232 of 1991 is hereby
set aside.
80. The question for consideration of legality and propriety of the impugned
judgment passed in Sessions Trial No. 232A of 1991 subject matter of
Criminal Appeal (DB) No. 185 of 2020 is now required to be considered as
to whether the prosecution has been able to prove the charge said to be
beyond all reasonable doubt. However, the testimony of P.W.-5 of Sessions
Trial No. 232 of 1991 who has been examined as P.W.-3 in Sessions Trial
No. 232A of 1991 is quite different to the effect that she has stated in the
cross-examination that due to dark night she could not identify the accused
persons likewise the P.W.-2 and P.W.-3 of Sessions Trial No. 232 of 1991
have consistently deposed in their testimony that the P.W.-5, Bilaso Devi
had disclosed at the time when she was being carried to the hospital in
scooter that some dacoits had come and committee murder of her daughter
38 Cr. Appeal (DB) No. 206 of 1996 (R)
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as also assaulted her leading to serious injury but said evidence is not
available in the testimony of P.W.-3 of Sessions Trial No.232A of 1991.
81. The Court is to consider as to whether in absence of said version and in
isolation whether because of some transaction merely on the ground that the
P.W.-3 of Sessions Trial No.232A of 1991 had deposed that she had seen the
appellant coming out from the house along with co-accused, the judgment of
conviction can be said to be justified only with the aid of Section 34 of IPC?
82. Further, since the learned trial court by taking aid of the Section 34 of the
IPC has convicted the present appellants for the alleged offence, therefore at
this juncture it would be apt to discuss the ingredients of Section 34 of the
IPC.
83. It needs to refer herein that under the provisions of Section 34 the essence of
the liability is to be found in the existence of a common intention animating
the accused leading to the doing of a criminal act in furtherance of such
intention. As a result of the application of principles enunciated in Section
34, when an accused is convicted under Section 302 read with Section 34, in
law it means that the accused is liable for the act which caused death of the
deceased in the same manner as if it was done by him alone. The provision is
intended to meet a case in which it may be difficult to distinguish between
acts of individual members of a party who act in furtherance of the common
intention of all or to prove exactly what part was taken by each of them.
84. Thus, from the aforesaid settled position of law it is evident that Section 34
has been enacted on the principle of joint liability in the doing of a criminal
act. The section is only a rule of evidence and does not create a substantive
39 Cr. Appeal (DB) No. 206 of 1996 (R)
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offence. The distinctive feature of the section is the element of participation
in action. The liability of one person for an offence committed by another in
the course of criminal act perpetrated by several persons arises under Section
34 if such criminal act is done in furtherance of a common intention of the
persons who join in committing the crime.
85. In order to bring home the charge of common intention, the prosecution has
to establish by evidence, whether direct or circumstantial, that there was plan
or meeting of minds of all the accused persons to commit the offence for
which they are charged with the aid of Section 34, be it prearranged or on
the spur of the moment; but it must necessarily be before the commission of
the crime.
86. The true contents of the section are that if two or more persons intentionally
do an act jointly, the position in law is just the same as if each of them has
done it individually by himself. The existence of a common intention
amongst the participants in a crime is the essential element for application of
this section. It is not necessary that the acts of the several persons charged
with commission of an offence jointly must be the same or identically
similar. The acts may be different in character, but must have been actuated
by one and the same common intention in order to attract the provision.
87. Further, the burden lies on the prosecution to prove that actual participation
of more than one person for commission of criminal act was done in
furtherance of common intention of all at a prior concert. However, it is not
required for the prosecution to establish that there was a prior conspiracy or
premeditation; common intention can be found in the course of occurrence.
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88. To apply Section 34 apart from the fact that there should be two or more
accused, two factors must be established: (i) common intention, and (ii)
participation of the accused in the commission of an offence. If common
intention is proved but no overt act is attributed to the individual accused,
Section 34 will be attracted as essentially it involves vicarious liability. But
if participation of the accused in the crime is proved and common intention
is absent, Section 34 cannot be invoked reference in this regard may be taken
from the judgment rendered by the Hon'ble Apex Court in the case of Jai
Bhagwan v. State of Haryana (1999) 3 SCC 102.
89. As held by the Constitution Bench of the Hon'ble Apex Court in Mohan
Singh v. State of Punjab AIR 1963 SC 174, common intention denotes
action in concert, and a prior meeting of minds--the acts may be different,
and may vary in their character, but they are all actuated by the same
common intention. However, prior concert in the sense of a distinct previous
plan is not necessary to be proved. The common intention to bring about a
particular result may well develop on the spot as between a number of
persons. Thus, the question as to whether there is any common intention or
not depends upon the inference to be drawn from the proven facts and
circumstances of each case. The totality of the circumstances must be taken
into consideration in arriving at the conclusion whether the accused persons
had the common intention to commit the offence with which they could be
convicted
90. In the aforesaid backdrop, this Court is now proceeding to examine the
evidence adduced by the prosecution in course of trial in order to answer the
issue as to whether the culpability against the appellant in the instant case is
41 Cr. Appeal (DB) No. 206 of 1996 (R)
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made out under the alleged Section of the Indian Penal Code read with
Section 34 of the Indian Penal Code by appreciating the evidences.
91. It is admitted case of the prosecution if the testimony of P.W.-3 of Sessions
Trial No.232A of 1991 who has been considered to be eye witness will be
taken into consideration that she had seen the appellant of Criminal Appeal
(DB) No. 185 of 2020 coming out from the house and basing upon the same,
the judgment of conviction has been passed but as has been propounded by
the Hon'ble Apex Court in the judgments hereinabove on the consideration
of the issue of conviction by taking aid of Section 34 of IPC that specific
attributability is required to be shown of one or the other accused persons
and merely on the ground of presence at the place of occurrence, there
cannot be any conviction by taking aid of Section 34 of IPC and that is
exactly the case herein but the same has not been taken into consideration by
the learned trial court.
92. This Court, on the basis of discussion made hereinabove, is of the view and
further taking into consideration the testimony of P.W.-3 of Sessions Trial
No. 232 A of 1991 who has been considered as an eye witness as also taking
into consideration that no specific attributability has come against this
appellant is of the view that the judgment passed by the learned trial court in
Sessions Trial No. 232A of 1991 requires interference by this Court.
93. Accordingly, the impugned Judgment of conviction and order of sentence
dated 19.12.2019 passed by learned Sessions Judge, Latehar in Sessions
Trial No. 232A of 1991 is hereby set aside.
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94. Consequent thereto, both the criminal appeals i.e. Cr. Appeal (DB) No. 206
of 1996 and Cr. Appeal (DB) No. 185 of 2020 are hereby allowed.
Accordingly, the appellants of both the appeal are hereby discharged from
the criminal liability.
95. Pending interlocutory application(s), if any, also stands disposed of.
96. Let this order/judgment be communicated forthwith to the court concerned
along with the Lower Court Records.
(Sujit Narayan Prasad, J.)
I agree,
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 16 / 07 /2025
Saurabh /Samarth/ A.F.R.
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