Jharkhand High Court
Kaila Mahto Son Of Akal Mahto vs The State Of Bihar (Now Jharkhand) on 10 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:14997-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
-----
Cr. Appeal (DB) No.258 of 1998(R)
------
[Against the judgment of conviction dated 08.09.1998 and order
of sentence dated 09.09.1998 passed by the learned Addl.
Sessions Judge-V, Giridih in Sessions Trial No.392 of 1995]
------
1. Kaila Mahto son of Akal Mahto
2. Giro Mahto Son of Akal Mahto
3. Churka Singh son of Tuplal Singh
4. Bodhi Mandal Son of Kamal Mandal
5. Jageshwar Mahto
6. Narayan Mahto son of Akal Mahto
7. Etwari Mandal @ Ritlal Mandal son of Kamal Mandal
8. Jodhi Mandal son of Jhupar Mandal
Appellants are residents of village-Kattutand, P.S. Birni, District-
Giridih and Appellant No.15 resident of village-Jamdala, P.S.
Birni, District-Giridih.
.... .... Appellants
Versus
The State of Bihar (Now Jharkhand)
.... .... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellant s : Mr. P.K. Mukhopadhyay, Advocate
Mr. S.K. Murty, Advocate
For the State : Mr. Satish Prasad, A.P.P.
.....
C.A.V. on 17/04/2025 Pronounced on 10/06/2025
Per Sujit Narayan Prasad, J.
1. At the outset, it needs to refer herein that the appeal against
the appellant nos.1 (Khiru Mandal), 2 (Manjhi Mahto), 3
(Ganpat Mahto), 6 (Sukhdeo Mahto), 7 (Babu Mani Singh)
2025:JHHC:14997-DB
and 11 (Arjun Mahto) was abated vide order dated
30.07.2024. So far as appellant no.12 (Bahadur Mandal) is
concerned, the appeal was abated vide order dated
17.04.2025.
2. The instant appeal filed under Section 374 (2) of the Code of
Criminal Procedure, is directed against the judgment of
conviction dated 08.09.1998 and order of sentence dated
09.09.1998 passed by the learned Addl. Sessions Judge-V,
Giridih in Sessions Trial No.392 of 1995, whereby and
whereunder, the appellants have been convicted for the
offence punishable under Sections 302/149 of the Indian
Penal Code and sentenced to undergo R.I. for life for the
offence under section 302 and further the appellants namely
Kaila Mahto, Giro Mahto Son and Churka Singh have been
convicted under Section 148 IPC and sentenced for one year
for the offence under Section 148 IPC, and rest of the
appellants have been convicted under Section 147 IPC and
sentenced for six months. All the sentences were ordered to
run concurrently.
Prosecution case
3. This Court, before proceeding to examine the legality and
propriety of the judgment of conviction and order of sentence,
deems it fit and proper to refer the background of prosecution
case, as per the fardbeyan of P.W.5, Jehali Mian (Informant),
which reads as under:
2 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
3.(i) The prosecution case as unfolded in the fardbayan of
Informant, namely, Jehali Mian (P.W.5), wherein, he has stated
before the Birni Police Station alleging inter-alia that on
29.1.1995 at 7.00 A.M. while his son Khalil Mian was going on a
bicycle to bring Kerosine oil and when he reached near the
house of accused Khiru Mandal, Manjhi Mahto, Ganpat Mahto,
Kaila Mahto, Giro Mahto and Sukhdeo Mahto were warming
themselves by fire and as soon as Khalil Mian reached there,
Khiru Mandal caught his cycle and started abusing him and
pushed him down from the cycle on which his son fell down and
started making hulla. Khiru Mandal also called his family
members on which accused Babu Mani Singh, Churka Singh,
Budhan Mahto, Etwari Mandal, Jogeshwar Mahto, Arjun Mahto,
Bahadur Mandal, Somar Gope, Jodho Mandal, Narayan Mahto,
all reached armed with lathi, rod, Bhala, Garasha, Pasa of Kudal,
hammer, Sabbal and they pulled his son inside the house and
started assaulting him with hammer, lathi, sabbal and rod and
Kudal on which, he, Rajak Mian, Nasima Khatoon, Teklal Mahto,
Somar Mahto, Nandlal Mahto came at the place of occurrence
and tried to pull Khalil Mian out of the house but the accused
persons did not allow them and started assaulting them. Due to
which, her daughter-in-law, Nasima Khatoon, his son, Rajak
Mian became injured and Rajak Mian fled towards the Jamua
P.S. and Jamua Police reached there. The accused persons
thrown Khalil Mian out of the house in the injured condition who
3 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
was immediately sent to the Sadar Hospital Giridh for treatment
and while they were taking Khalil Mian to the Hospital, in the
way, he died and when reached the Sadar Hospital, the Doctor
declared him dead.
3(ii). It is further alleged that the reason behind the
occurrence is that there is a dispute between Somar Mahto and
Arjun Mahto with regard to lands and in that dispute, he has
sided with Somar Mahto, due to which, the accused persons are
having enmity against them and earlier also, the accused
Babumani Singh, Kali Mahto, Jodhi Mandal had kidnapped Khalil
Mian with intention to kill him but due to interference of Police, he
was recovered from Kusumba which gave rise to a criminal case.
Due to aforesaid enmity, the accused persons, had assaulted the
deceased, Khalil Mian, by which, he died.
4. On the basis of fardbeyan of the informant, a formal FIR
being Birni P.S. Case No.07/1995 was instituted against all the
accused persons under Sections 147/148/149/323/302 of the
IPC and police after investigation submitted charge-sheet
against the accused persons.
5. Thereafter, the cognizance was taken and the case was
exclusively triable by the court of Sessions. The case was
committed to the court of Sessions for trial and disposal. After
framing of charges, the accused persons pleaded not guilty and
claimed to be tried.
4 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
6. In order to prove its case, prosecution examined altogether
9 witnesses, i.e., P.W.1-Nandlal Mahto, P.W.2-Rajak Mian,
P.W.3-Nasima Khatoon, P.W.4-Dr. B.P. Singh (Doctor), P.W.5-
Jehali Mian, P.W.6-Binesh Lal (I.O.), P.W.7-Dr. G.C. Sinha,
P.W.8-Sukhdeo Choudhary and P.W.9-Teklal Mahto.
7. The trial Court, after concluding the evidence of
prosecution, recorded the statement of the accused persons
under Section 313 of the Criminal Procedure Code, in which,
accused persons had denied the prosecution evidence and
claimed to be innocent.
8. The learned trial court, after perusal of record found the
charge levelled against the accused/appellants proved.
Accordingly, the accused/appellants have been found guilty, as
such, convicted and sentenced vide impugned judgment of
conviction dated 08.09.1998 and order of sentence dated
09.09.1998, which is the subject matter of instant appeal.
Arguments of the appellants
9. Mr. P.K. Mukhopadhyay, learned counsel for the
appellants has taken the following grounds by assailing the
impugned judgment of conviction and order of sentence: -
(i) The conviction of the appellants cannot be said to be
proper in absence of any specific overt act alleged against
the appellants.
(ii) Learned counsel, for the appellants, has argued that
the trial court has committed manifest error in not
5 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
appreciating the fact that the most of witnesses except
doctor and investigating officer who have been examined
by prosecution are highly interested witnesses as they are
related to each other.
(iii) The testimony of witnesses clarifies that general and
omnibus allegation of assaulting the deceased has been
deposed.
(iv) The death has been shown due to injury sustained in 7
to 9 ribs, but, it cannot be gathered after going through the
testimony of the witnesses stating therein that any injury
has been given in the chest by any of the appellants.
(v) The suggestion has been given that there is possibility
of fracture in the ribs due to falling from the cycle.
(vi) The argument has been advanced that testimony of
P.W.2, P.W.3, P.W.5 and P.W.9 cannot be said to be
trustworthy warranting the conviction for life under Section
302 of the IPC on the basis of general and bald statement.
(vii) The deceased was also man of antecedents and
shown to be brother of Dacoit and stones have been found
nearby his house.
(viii) Learned counsel has submitted that in such a
contradictory statement as has been taken by the
witnesses in the testimony, has not been supported by the
Doctor, hence, there is possibility of two views and in that
6 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
view of the matter, the benefit of doubt, is to be given in
favour of the appellants.
10. Learned counsel for the appellants, on the aforesaid
premise, has submitted that the impugned judgment of
conviction/sentence suffers from patent illegality and hence, it is
not sustainable in the eye of law.
Arguments of the respondent-State
11. Per Contra, Mr. Satish Prasad, learned A.P.P. appearing
for the respondent-State has vehemently opposed the aforesaid
grounds by defending the impugned judgment by taking the
following grounds: -
(I) P.W.2, P.W.3 and P.W.5 are the injured witnesses and
they have fully supported the prosecution version.
(II) The Doctor has also supported the prosecution version
by showing the cause of death occurred due to injury sustained
by hard and blunt substance.
(III) P.W.2, P.W.3 and P.W.5 had deposed that the
appellants were armed with lathi, sabbal and farsa.
(IV) It has been submitted that if the nature of injury will
be seen, as has been recorded by the Doctor while conducting
the postmortem, it would be evident that the complicity of these
appellants cannot be disputed.
12. Learned A.P.P. for the State, based upon the aforesaid
grounds, has submitted that it is therefore a case where the
7 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
impugned judgment of conviction/sentence requires no
interference.
Analysis
13. We have heard the learned counsel for the parties,
considered the finding recorded by the learned trial court in the
impugned judgment, gone across the testimony of the
prosecution witnesses as well as the other documents available
in the lower court records.
14. Now, the question which falls for determination before this
Court is:
"as to whether the prosecution has been able to
bring home the charges levelled against the
appellants beyond all reasonable doubts and
whether the impugned judgment is sustainable in
eye of law or on facts?"
15. This Court, before going into the legality and propriety of
the impugned judgment of conviction/sentence, deems it fit and
proper to refer the testimonies of prosecution witnesses.
16. P.W.1, namely, Nandlal Mahto, has been declared hostile
and P.W.8, namely, Sukhdeo Choudhary was the tendered
witness.
17. P.W.2, namely, Rajak Mian who is one of the injured in this
case and brother of the deceased, has stated that at 7:00 a.m.
on 21.09.1995, he was going with bullock-cart and heard hulla
and came near the house of Khiru Mandal where he saw that the
accused have assaulted Khalil Mian and broken his leg and hand
and blood was coming.
8 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
18. He has named all the accused persons and specifically
deposed that Khiru Mandal had Farsa in his hand, Manjhi Mahto
had Pasa of Kudal (spades) in his hand. Kati Mahto had sabbal
in his hand, Giro Mahto had rod in his hand, Babulam Mandal
was armed with Sabbal.
19. Churka Singh was armed with Barchha, Arjun Mahto was
armed with lathi, Narayan Mahto was armed with Kudal,
Jogeshwar Mahto armed with Sabbal, Jodhi was armed with
Kudal and all the accused persons have assaulted Khalil Mian by
their arms and when they went to save Khalil Mian, he was also
assaulted by Bodhi Mandal by lathi. He was further stated that
he was assaulted by Manjhi Mandal by Pasa of Kudal, and, Kaila
Mahto assaulted him by Sabbal on back and thereafter, he fled
away from there and rushed to Jamua P.S. and thereafter police
came and the accused persons fled away. The police asked to
take Khalil Mian immediately to the hospital on which along with
his father and wife took Khalil Mian to the hospital but on the way
Pachamba Khalil Mian to the hospital but on the way at
Pachamaba, Khalil Mian died and in the hospital the doctor
declared him dead and treated them at the hospital. He has also
stated that there was dispute between Somar Mahto and Manjhi
Mahto and his father told that he will decide the matter.
20. In para-4, he has deposed that his brother was earlier
kidnapped by Manjhi and three other persons but the police
apprehended them immediately and three other persons but the
9 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
police apprehended them immediately. In his cross-examination,
he has admitted that he was arrested by the Jamua Police and a
DBBL gun was recovered from his house and only 20 days prior
he was released on bail. He has also admitted that once he was
gone in jail in forest case also and once he was implicated in a
theft case. In para 6, he has also admitted that whenever a case
was lodged against him, it was lodged against the deceased
Khalil also. In Para-9 of his evidence, he has stated that in this
case accused Babumani and Chirka Singh belongs to one
house, Bodhi Mandal, Etwari Mandal, Bahadur Mandal, Khiru
Mandal belong to second house and Giro Mahto, Sukhdeo
Mahto, Kaila Mahto belong to 3rd house and Manjhi Mahto,
Ganpati Mahto of house and Jogeshwar Mahto, Arjun Mahto and
Narayan Mahto 5th house and Somar Gope belong to another
family and Jodhi Mahto belong to another family. His attention
has also been drawn towards the statement made before the
police during the course of investigating of the case. In para 16
of his evidence, he has stated that just in front of the house of
the Khiru Mandal, he has his Bari.
21. In Para-17 of his evidence, he has deposed again that as
to when he reached there, Marpit was going on and he saw
Khalil drenched with blood.
22. P.W.-3, namely, Nasima Khatoon was also one of the
injured and she has also supported the factum of occurrence, He
has further deposed that all the accused persons have pulled
10 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
Khalik inside the house and all the accused persons were armed
and she has specifically mentioned the armed which the accused
persons were carrying. In Para No. 1, she has further stated that
the petitioner Khalil made hulla and on which her father-in-law
and husband came to the place of occurrence and saw the
accused assaulting on the deceased and when she tried to save
him, she was also assaulted and her father-in-law and husband
were also assaulted. She has further stated that Khiru Mandal
assaulted her and Kaila Mahto pulled her down by catching her
hairs. Thereafter, her husband went to the police station and the
police came and they had taken Khalik to the hospital but in the
way he died and in hospital, she was treated. She has also
stated in Para-9 of her evidence in cross-examination that just
adjacent to the house of Khiru, she has land and well.
23. P.W.-4 Dr. B.P. Singh has conducted the post-mortem
examination on the dead body of the deceased and found the
following ante-mortem injuries on the person of Khalil Mian:-
1. Lacerated wound in front of right leg 1"x ½ " bone deep
associated with communition of tibia,
2. Lacerated wound on right forearm 2 ½ " x ¼ " bone deep
amalgamed with fracture of radius bone;
3. Lacerated wound on left forearm 1" x ¼ " x skin deep;
4. Swelling on left forearm near waist associated with fracture of
radius and alna;
11 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
5. Bruise with swelling in back five in number of varying size 2 ¼
" x 4" x ¼ " x ¾ ".
6. Scratches three in number on chest left side front near
sternum 2" x 2 1/2" x ¼ " x 1";
7. Lacerated wound on left ankle 1" x ¼ " x skin deep.
24. On dissection under surface of chest wall left side, he
found ecchymosed, 7th to 9th rib, left side chest fracture, left
lung contused, heart contained blood left side and right side
empty, chest cavity contained blood and clot. Stomach
contained undigested food-stuffs like mutton, mucos membrane
normal. The doctor has further found that all the injuries
mentioned above are external and caused by hard and blunt
substance and in his opinion, cause of death was due to shock
and hemorrhage as a result of above injuries (mentioned
hemorrhage as a result of above injuries (mentioned death due
to inadvertence). He has further opined that chest injury was
sufficient to cause death in ordinary course of nature and time
elapsed since death to postmortem examination about six hours.
25. PW-5 Jehali Mian, the informant of the case and he has
also stated that his son was going to bring kerosene oil and as
soon as he reached on the door of Khiru Mandal, Manjhi Mahto,
Bodhi Mandal, Khiru Mandal, Churka Singh were warming
themselves with fire and Khiru Mandal caught his cycle and
Manjhi and Churka and Bodhi also caught him and pulled him
inside the house and till he reached there, Manjhi Mahto
12 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
assaulted him by pasa of spade (kudal) on left leg and on hulla
of Khiru Mandal rest of the accused persons came variously
armed and started assaulting his son and when he tried to save
him Khiru assaulted him by Farsa on right hand and Nasima
Khatoon was also assaulted by Khiru Mandal by Bet (handle)
portion of Farsa on leg and waist and Rajak Mian was also
assaulted by Manjhi Mahto by Pasa of Kudal on Clavicle and
thereafter Rajak Mian went towards Jamua P.S. but by that time,
the accused persons thrown Khalik Mian in the lane after
assaulting him. Thereafter, the police came and on the advice of
police, they had taken Khalil Mian to the hospital but hear
pachamba, he died and at Giridih hospital, he, his son Rajak
Mian and Nasima Khatoon were treated and in the hospital, the
police came and recorded his statement on which he put his LTI
and has also stated that on the same day at 7 to 8 in the night,
he returned to the village where Birni police also came there and
recorded the statement. He has further stated in Para-9 that he
could not saw as to why accused persons assaulted his son. In
para- 11 of this evidence, he has stated that his house is in the
northern side of the house of Khiru Mandal and he has further
stated that in his house and the house of Khiru Mandal there is
Bari on both sides. He has denied that his son Khalil was
accused in any criminal case but once he had gone to jail in a
coal case and he has further stated that his son Rajak Mian was
also an accused in a case of recovery of gun.
13 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
26. PW-6, Binesh Lal, who is the Investigating Officer of the
case, has deposed that on 29.01.1995, the statement of Jehali
Mian was recorded by the ASI B.L. Ram at Sadar Hospital,
Giridih on the basis of which Birni police has recorded the formal
FIR and investigation was handed over to him. In para-4 he has
given description of the place of occurrence as the village road in
front of the house of Khiru Mandal. He has further stated that he
found the Angan freshly smeared with cow-dung and in east of
the P.O., there is road and Bari of Khalil Mian, west-house of Kali
Singh, and well, north- at about 20/200 yards then house of the
deceased and his land, south parti land. He has also stated that
after investigation, he has submitted chargesheet.
27. In his cross-examination, he has deposed that from Jamua
police station, a Choukidar came to the Birni P.S., In Para-8, he
has stated that about 11.40 in the night, he had inspected the
place of occurrence. In Para-11 of his evidence, he has stated
that he recovered lathi, rod, farsa from the house of Khiru
Mandal and prepared seizure list of that. Thereafter, his attention
has been drawn towards the statement made by the different
witnesses before him and towards the statement made in the
fardbeyan.
28. PW-7 Dr. G.C. Sinha, who is the doctor, has examined
Rajak Mian, Nasima Khatoon and Jehali Mian and he has stated
that at 12.40 PM on 29.01.1995, he has examined Jehali Mian
and found one lacerated wound 3" x ½ " x muscle deep of first
14 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
web of right hand and the injury was simple in nature. He found
the injury simple caused within six hours by hard and blunt
substance may be lathi and sabbal.
29. He has also deposed that he examined Rajak Mian at
12.45 P.M. and found two bruises on scapula region. Injury were
simple in nature caused by hard and blunt substance may be by
lathi or sabbal and the age of the injuries were within six hours.
30. He has also examined Nasima Khatoon at 12.50 PM and
found one swelling with pain 3 ½ 2 x 3 ½ 2 x on the lateral
aspect of mid region of left leg and swelling with pain 1 ½ x 1 ½
on the mid region of right leg and opinion was reserved about the
aforesaid injuries and injuries may be caused by hard and blunt
substance.
31. In his cross-examination, he has deposed that the A.S.I. of
Giridih (T) P.S. has referred all the injured for treatment and he
does not know x-ray as suggested to Nasima Khatoon was taken
or not. He has further deposed that all the aforesaid injuries may
be on fall on the blunt and hard substance.
32. PW-9 Teklal Mahto claims himself as an eye-witness and
has deposed that while he was going to sale coal, he heard hulla
and when he returned back, he saw a Marpit taking place in the
Angan of Khiru Mandal and saw Khiru Mandal, Manjhi Mahto,
Churka Singh, Babumani Singh, Bodhi Mandal, Kaila Mahto Giro
Mahto and Sukhdeo Mahto and they were assaulting.
15 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
33. In his cross-examination, he has stated that Rajak Mian
was also with him and on hulla both of them returned and saw
the assault on Khalik Mian. He has further stated that assault
was not taken place in the Gali rather in the Angan (court yard).
34. It also needs to refer herein that three witnesses have
been examined on behalf of the defence.
35. D.W-1 Hulash Mandal has proved the formal FIR and
fardbeyan of Birni P.S. Case No. 2/95 as Ext A and B and also
proved the FIR of Birni P.S. Case No. 55/97 and its fardbeyan as
Ex. A/1 and B/1.
36. D.W. 2 Prayag Yadav has proved formal FIR of Birni P.S.
case No. 104/94 as Ext. A/2 and fardbayan of the aforesaid case
as Ext. B/2 and also proved endorsement on the fardbayan in
that case as Ext. C.
37. D.W.-3, Jugal Kishore Pandit has proved formal FIR of
Binni P.S. Case No. 13/92 and written report as Ext. A/3 and D
and also proved endorsement on written report as Ext. C/1.
38. At this juncture it would be apt to reiterate the contention of
parties. Learned counsel, for the appellants, has argued that the
trial court has committed manifest error in not appreciating the
fact that the most of witnesses except doctor and investigating
officer who have been examined by prosecution are highly
interested witnesses as they are related to each other. It is
argued that the statement of witnesses shows that the appellants
did not have any intention to commit murder of the deceased. It
16 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
is argued that attention has been drawn of P.Ws. with respect to
the contradiction in the deposition of the witnesses vis-a-vis their
statement as recorded under Section 161 Cr. P.C. and there are
material contradictions in their testimony and hence, their
testimony cannot be relied upon. It is argued that even if for
arguments sake the prosecution story is found to be true then
also it would be evident that there is material improvements in
the testimony of the prosecution witnesses vis-a-vis the
statement made under Section 161 Cr.P.C. Learned counsel has
submitted that the findings of P.W. 4, the doctor who conducted
the post-mortem over the dead body has not corroborated the
ocular testimony regarding the injuries sustained by the
deceased.
39. Learned counsel further submitted that in view of the
material contradictions in the testimony of the witnesses, it is
evident that the prosecution has not been able to bring home the
charges against the appellant beyond all reasonable doubt
therefore, the appellants are entitled to the benefit of doubt. On
the aforesaid ground it is emphatically contended that the
impugned judgment is not sustainable in law or on facts and
deserves to be set aside.
40. Per contra, learned APP has contended that just because
the some of the witnesses are agnates or related to each other
their evidence or testimony cannot be categorized as that of
interested witnesses. It is argued that they are natural witness
17 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
and their presence at the place of occurrence is corroborated by
the injury report and the discrepancies pointed out by the learned
counsel for the appellants are not material and such
discrepancies does not strike at the creditworthiness of their
testimony. It is argued that the trial court has considered and
elaborately discussed the material evidence in its correct
perspective. That the judgment of conviction' and order of
sentence is based on the evidence marshalled out during the
trial and it does not require any interference by this Court.
41. We have considered the rival contentions and perused the
testimony of the witnesses. It is noticed that the witnesses
examined by the prosecution particularly P.W.5 informant have
stated in testimony that they have no idea about the motive
behind the occurrence. However, informant had stated in the
ferdbeyan that there was land dispute between the Somar and
Manjhi Mahto and since the informant had supported the Somar ,
the alleged occurrence was caused by the appellants.
42. It has been admitted that the members of the prosecution
parties had sustained injuries and P.W. 7 the doctor, had found
injuries on their person i.e. P.W.5, P.W.2 and P.W.3. The injury
reports are marked as Exts.4, 4/1 and 4/2 respectively, P.W. 7
had opined that the injuries were caused by hard and blunt
substance.
43. At this juncture it would be fruitful to consider the principles
governing constructive liability under Section 149 I.P.C. This
18 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
section requires the consensus of five or more persons to do an
unlawful act prohibited by Section 141 I.P.C. In order to create a
liability under this section there must be proof that the accused
knew that the offence committed by the member of the assembly
was likely to be committed by any of them. Section 149 does not
create new offence but deals with vicarious liability of the
members of unlawful assembly.
44. In Jamail Singh v. State of Punjab; AIR 1982 SC 70, the
Hon'ble Apex Court held that since there was no pre-concert
between the accused persons nor a meeting of minds between
them before the offence took place, the conviction of the
accused under Section 302/34 I PC was bad and since the
accused merely gave a token blow on the ear and caused simple
injuries, the conviction was altered to one under Section 324
IPC.
45. At this stage, it is necessary to reiterate the well settled
principle that guilt of the accused is to be judged on the basis of
the facts and circumstances of the particular case. Thus,
considering the entire gamut of the case and on meticulous
examination of the material evidence on record we have no
hesitation in holding that the question that still remains to be
answered is whether it is possible to arrive at the conclusion as
to what injury was caused by which accused.
46. As noticed no reliable evidence has been broughtforth on
the record as to what exactly transpired at the time of incident
19 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
and what was the motive to cause such incident. In the first
paragraph of the ferdbeyan it is alleged that accused persons
with their arms had assaulted the deceased. It is vividly clear
from the said narration that there is general and omnibus
allegation against all the accused persons and in the concluding,
paragraph of the ferdbeyan it is alleged that accused persons
namely, Khiru Mandal also called his family members on which
accused Babu Mani Singh, Churka Singh, Budhan Mahto, Etwari
Mandal, Jogeshwar Mahto, Arjun Mahto, Bahadur Mandal,
Somar Gope, Jodho Mandal, Narayan Mahto, all reached armed
with lathi, rod, Bhala, Garasha, Pasa of Kudal, hammer, Sabbal
and they pulled his son inside the house and started assaulting
him with hammer, lathi, sabbal and rod and Kudal.
47. It is noticed that P.W. 5 in the ferdbeyan and in his
testimony before the court has deposed that accused/appellants
were armed with Bhala, Garasha, Pasa of Kudal, hammer,
Sabbal, lathi and Farsa and they assaulted the deceased with
their arms but this fact has not been corroborated by the post-
mortem report (Ext.-1), as no incised wound injury on the body of
the deceased was found.
48. It is important to mention here that this witness has
nowhere stated that particular accused/appellant gave the fatal
blow to the deceased. On analysis of the testimony, it is
apparent that there is improvement in the examination-in-chief of
the witnesses vis- a-vis the narration in the ferdbeyan as on point
20 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
of motive, it has been stated since they were in support of the
Somar Mahto therefore appellant assaulted his son but in
examination -in-chief he has stated that he has no idea about the
motive behind the alleged occurrence.
49. P.W.2, namely, Rajak Mian who is one of the injured in
this case and brother of the deceased, has stated that at 7:00
a.m. he was going with bullock-cart and heard hulla and came
near the house of Khiru Mandal where he saw that the accused
have assaulted Khalil Mian and broken his leg and hand and
blood was coming.
50. He has named all the accused persons and specifically
deposed that Khiru Mandal (since dead) had Farsa in his hand,
Manjhi Mahto (since dead) had Pasa of Kudal (spades) in his
hand. Kati Mahto had sabbal in his hand, Giro Mahto had rod in
his hand, Babulal Mandal was armed with Sabbal, Churka Singh
was armed with Barchha, Arjun Mahto was armed with lathi,
Narayan Mahto was armed with Kudal, Jogeshwar Mahto armed
with Sabbal, Jodhi was armed with Kudal and all the accused
persons have assaulted Khalil Mian by their arms and when they
went to save Khalil Mian, he was also assaulted by Bodhi
Mandal by lathi. He was further stated that he was assaulted by
Manjhi Mandal by Pasa of Kudal, and, Kaila Mahto assaulted
him by Sabbal on back.
51. It is evident from the testimony of this witness that there is
general and omnibus allegation against the appellants. As
21 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
noticed this prosecution witness is injured person hence his
presence at the place of occurrence cannot be doubted, but he
also has not given the categorical statement that among the
appellants who had given fatal assault to deceased.
52. P.W.-3, namely, Nasima Khatoon (Daughter-in-law of
the informant) was also one of the injured has deposed that all
the accused persons have pulled Khalil inside the house and all
the accused persons were armed and she has mentioned the
armed which the accused persons were carrying. In Para No. 1,
she has further stated that the petitioner Khalil made hulla and
on which her father-in-law and husband came to the place of
occurrence and saw the accused assaulting on the deceased
and when she tried to save him, she was also assaulted and her
father-in-law and husband were also assaulted. She has further
stated that Khiru Mandal assaulted her and Kaila Mahto pulled
her down by catching her hairs.
53. It is noticeable that although P.Ws. 2 and 3 are injured eye
witnesses and their presence at the place of occurrence cannot
be doubted but, in their deposition, they have not disclosed the
categorical details of the occurrence and manner and mode of
assault.
54. Further another injured eyewitness and informant of the
case P.W5 had stated that his son was going to bring kerosene
oil and as soon as he reached on the door of Khiru Mandal, his
cycle was caught by Khiru Mandal, and Manjhi and Churka and
22 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
Bodhi also caught him and pulled him inside the house and till he
reached there, Manjhi Mahto assaulted him by pasa of spade
(kudal) on left leg and on hulla of Khiru Mandal rest of the
accused persons came variously armed and started assaulting
his son and when he tried to save him, Khiru assaulted him by
Farsa on right hand and Nasima Khatoon was also assaulted by
Khiru Mandal by Bet (handle) portion of Farsa on leg and waist
and Rajak Mian was also assaulted by Manjhi Mahto by Pasa of
Kudal on Clavicles.
55. Thus, it is evident from the aforesaid testimony of this
witness that he was assaulted by Khiru Mandal with Farsa but as
per the injury report Ext-4 there was no marks of incised wound
on the body of this witness.
56. At this juncture it would be apt to mention the testimony of
investigating officer who had categorically stated that neither
P.W.2 nor P.W.3 had stated him about their assault made upon
him. For ready reference the relevant paragraph of his testimony
is being quoted as under:
"18. रज्जाक मियाां ने िुझे नह ां कहा था मक िुझे भ बोध िांडल त न लाठ
िारा.िाझ िांडल कुदाल के पास से िारा तथा कैला िहतो सब्बल से िारा
तो हि वहा से भाग गए।
25. िुझे रज्जक मियाां ने यह नह ां कहा था मक बोध िांडल ने त न लाठ
िारा.िाांझ कुदाल के पासा से िारा तथा कैला िहतो सब्बल से िारा तो िैं
वहाां से भाग गया। स्वतः िुझे जेनरल िारप ट का िार सभ िुदालयोां के
द्वारा कह गय है।
िैंने नस िा बानु का बयान कहुटाांड िें रामि िें मलया था तथा कहुटाांड िें
रामि 9 बजे पहुांचा था। िुझे यह भ नह ां कह थ मक िेरा दे वर
23 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
मकसज टाांड जा रहा था तथा ख रू िांडल के घर के पास पहुांचा तो ख रू
िांडल सायमकल पकड़ मलया तथा िाझ िहतो किर िें लटक गया तथा
बाबु िन मसांह हाथ पकड़ मलया बोध िडल तथा कैला िांडल एक-एक पैर
पकड़ मलया। एक हाथ चुरका मसांह पकड़ मलया एक हाथ सोिर पकड
मलया सभ मिलकर ख रू िांडल के आां गन िें घस टकर ले गए। हल्ला पर
प छे से ग रो िहतो, सुखदे व िहतो, बहादु र िांडल, एतवार िांडल,
नािेश्वर िहतो, अजुुन िहतो, नारायण िहतो, जोध िडल, नाराण िहतो
आए ख रू िांडल के हाथ िें फरसा िाांझ के पास कुदाल का पासा
बाबुिन मसांह के हाथ सब्बल, कैला के हाथ सब्बल चुरका के हाथ िें
फरसा जाध के हाथ िें हथौड , मगरो िहतो के हाथ कुदाल तथा जगेश्वर के
हाथ िें रड था, दरवाजा पर पहुांचने के बाद खल ल ने हल्ला मकया। हल्ला
पर िैं, िेरे पमि िेरे ससुर, दौडकर आए और उसके घर के आां गन िें िार
रहा था दे खा।"
57. Thus, it is evident that prosecution witnesses had not stated
the aforesaid factual aspect in their statements given under
161 Cr.P.C, as such it may amount to major omission.
Further all the aforesaid factual aspects have been narrated
directly in their testimony before the trial court.
58. It is well settled legal proposition that while appreciating the
evidence; the court has to take into consideration whether the
contradictions/omissions were of such magnitude so as to
materially affect the prosecution case. Where the omission(s)
amount to a contradiction, creating a serious doubt regarding
the truthfulness of a witness, and the other witnesses also
make material improvements before the court in order to
make the evidence acceptable, it would not be safe to rely
upon such evidence. The discrepancies in the evidence of
eyewitnesses, if found not to be minor in nature, may be a
24 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
ground for disbelieving and discrediting their evidence. In
such circumstances, the witnesses may not inspire
confidence and if their evidence is found to be in conflict and
contradiction with the other evidence available or with a
statement that has already been recorded, then in such a
case, it cannot be held that the prosecution has proved its
case beyond reasonable doubt.
59. 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
25 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
were the real culprits. We really entertain doubt
about the involvement of the appellants in the
crime."
60. 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."
61. Now we have to look at the testimony of P.W. 4, who had
performed autopsy on the dead body and on dissection under
surface of chest wall left side, he found ecchymosed, 7th to 9th
rib, left side chest fracture, left lung contused, heart contained
blood left side and right side empty, chest cavity contained
blood and clot. The doctor has further found that all the
injuries were external and caused by hard and blunt
substance. He has further opined that chest injury was
sufficient to cause death in ordinary course of nature.
26 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
62. Thus, from the aforesaid it is evident that as per the this
witness no incised wound was present on the body of the
deceased and this fact is contradictory in nature because all
the injured witnesses have stated that the some of the
appellants were armed with sharp cut weapon and they had
assaulted the deceased with said weapon.
63. Since the prosecution witnesses, i.e., P.W. 2, 3 and 5 are the
injured eyewitness, as such, their presence at the place of
occurrence can not be doubted but at the same time their
testimonies are with omissions and contradictions and further
from testimonies of the aforesaid witnesses, the involvement
of the present appellants in murder of the deceased is not
proved beyond reasonable doubt as such the appellants are
entitled for benefit of doubt for the alleged murder of the
deceased.
64. 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
27 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
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 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."
65. 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
28 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
Bentham, "witnesses are the eyes and ears of
justice.--- -"
66. Further, as per ocular testimonies, however, the injuries on
body of deceased were jointly attributed to the appellants, but
the prosecution witnesses have not been able to testify as to
which individual caused the fatal injuries, i.e., chest injuries.
67. In the case of Amrik Singh vs. State of Punjab; 1993 Cri.
LJ 2857, the Hon'ble Apex Court has observed that where
the injury which proved to be fatal was not attributed to any
one of the accused, the accused who inflicted one injury on
the head of the deceased was not responsible for other fatal
injury.
68. Thus, as stated above, as per post-mortem report no incises
injury by sharp weapon was found on the deceased. From the
discussion made herein above, it would be evident that the
prosecution witnesses have made material improvements in
their testimony vis-a-vis the statement made under Section
161 Cr.P.C.
69. Thus, on evaluation of the testimony of the witnesses and
the evidence we hold the appellants guilty under 304 Part II of
the I.P.C.
70. Consequently, the judgment passed by the court below is
modified and this Court, hereby, finds appellants guilty for the
offence under Section 304 Part II I.P.C. and sentence them
for the period already undergone by them.
29 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
71. Further from record it transpired that the appellants namely
Kaila Mahto, Giro Mahto Son and Churka Singh have been
convicted under Section 148 IPC and sentenced for one year
for the offence under Section 148 IPC, and rest of the
appellants have been convicted under Section 147 IPC and
sentenced for six months, this Court while taking in to
consideration the rigor of trial which have been faced by the
present appellants, for the said offence, it would be deem it fit
and proper to sentence them for the period already
undergone by them.
72. Since from the record, it is evident that appellants are on bail,
therefore they are discharged from the liability of their bail
bond.
73. Accordingly, the judgment of conviction dated 08.09.1998
and order of sentence dated 09.09.1998 passed by the
learned Addl. Sessions Judge-V, Giridih in Sessions Trial
No.392 of 1995 are modified to the extent as discussed
above and the appellants are sentenced for the period as
stated hereinabove.
74. The appeal is hereby dismissed with the modification of the
judgment of conviction and order of sentence to the extent as
indicated above.
75. With the aforesaid observations/directions, the instant appeal
stands dismissed.
30 Cr. Appeal (DB) No.258 of 1998
2025:JHHC:14997-DB
76. Let this order/judgment be communicated forthwith to the
Court concerned along with the Trial Court Records.
I Agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 10 June, 2025.
Rohit/-A.F.R.
31 Cr. Appeal (DB) No.258 of 1998
