Jharkhand High Court
Rajendra Mahto vs The State Of Bihar (Now Jharkhand) on 12 June, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Neutral Citation No. ( 2025:JHHC:15206-DB )
Criminal Appeal (DB) No. 238 of 1997(R)
(Against the judgment and order of conviction and sentence
dated 10.09.1997 passed by Sri Abhaya Shankar Prasad,
learned Addl. Sessions Judge, Bokaro in S.T. No. 187/1995.)
Rajendra Mahto, S/o Ramdhan Mahto, R/o Vill- Ramdih
Basti, P.S.- Harla, Dist.- Bokaro.
... Appellant
Versus
The State of Bihar (now Jharkhand) ... Respondent
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
----
For the Appellant : Mr. Jitendra Shankar Singh, Adv.
For the Respondent : Mr. Pankaj Kumar, P.P.
----
CAV on : 12/12/2024 Pronounced on : 12/06/2025
Per Rongon Mukhopadhyay, J. :
1. Heard Mr. Jitendra S. Singh, learned counsel for the
appellant and Mr. Pankaj Kumar, learned P.P.
2. This appeal is directed against the judgment and order of
conviction and sentence dated 10.09.1997 passed by Sri Abhaya
Shankar Prasad, Additional Sessions Judge, Bokaro in S.T. No.
187/1995 whereby and whereunder, the appellant has been
convicted for the offence punishable undersection 302 IPC and
has been sentenced to undergo imprisonment for life.
3. The prosecution case arises out of the fardbeyan of Niwaran
Mahto recorded on 07.02.1994, in which it has been stated that
on 26.01.1994, the nephew of the informant, namely, Punit
Kumar Mahto, aged 11 years, had come back home from school
after the flag hoisting ceremony. At about 5:00PM, Rajendra
Mahto (appellant) had come on a bicycle and had taken the
nephew of the informant towards the pond. When the child did
Neutral Citation No. ( 2025:JHHC:15206-DB )
not return, even at 8:00PM, he and the others went in search of
him. On 27.01.1994, an information about the missing child was
also given to the Police. When Rajendra Mahto was asked, he had
denied to have any knowledge about the whereabouts of the
child. On persistent queries, Rajendra Mahto relented and
disclosed that he had left the child near the pond. Even on
throwing a net in the well and the pond, nothing could be found.
It has been stated that Rajendra Mahto had called his relations
about two days back, which created a suspicion in the mind of
the informant. Today, i.e., 07.02.1994, some females were
discussing that some family members of the accused were
frequenting the hut at which, a search was made of the hut and
on the western side, on digging the ground, the dead body of
Punit Kumar Mahto was found.
Based on the aforesaid allegations, Harla P.S. Case No.
16/94 was instituted under Section 364, 302, 201/34 IPC. On
completion of investigation, charge sheet was submitted and
after cognizance was taken, the case was committed to the Court
of Sessions where it was registered as S.T. No. 187/1995. Charge
was framed against the accused under Section 302, 364, 201/34
IPC, which was read over and explained to him in Hindi to which
he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as nine witnesses
in support of its case:
P.W.1 Shobha Kant Mahto has stated that Punit Kumar
Mahto was his nephew. On 26.01.1994, a Flag hoisting ceremony
was held at the office of Janta Dal and he had attended being the
Secretary of the Northern area of Bokaro. His nephew and other
students had gone to the school to participate in the flag hoisting
ceremony and they had returned at 9:30AM. His nephew was
also with them. He was not at home, the entire day. When he
returned home in the evening, he came to know that his nephew
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Punit had gone out in the morning and has not returned back.
They had searched for Punit in the house of their relatives, but
he could not be found. His brother Niwaran had disclosed that
he had come to know that Rajendra Mahto had taken Punit on a
bicycle to the house of Ramdhan Mahto situated in front of a
pond. Rajendra had stated that he had left Punit near the pond.
He has stated that from 27.01.1994 in the evening, Manohar
Mahto, who is the uncle of Rajendra Mahto started frequenting
the house of Ramdhan Mahto and they also started keeping a
distance which raised a suspicion in his mind and of the others.
They started keeping a watch over Ramdhan Mahto and others.
One day in the evening, the wife of Ramdhan along with the
children had gone to the house of Manohar at which he asked
Ramdhan Mahto about the whereabouts of his nephew at which,
Ramdhan Mahto feigned ignorance. He has stated that in the
meantime, an elderly person of the village had died and he was
busy in the same when a boy came and disclosed that a dead
body has been recovered in the house of Ramdhan Mahto. When
he had gone to the house of Ramdhan Mahto which is situated
in front of a pond, he had seen the presence of the Police, who
had taken away the wife, mother and children of Ramdhan
Mahto. Ramdhan and Rajendra had fled away. He had not seen
the dead body. He was sent letters from jail by Ramdhan Mahto
and Rajendra Mahto in which they had accepted their guilt and
had made a request to assist them in getting bail. He has proved
the letters written by Rajendra Mahto addressed to Guljar Mahto
which have been marked as Exhibits-1, 1/1, 1/2, 1/3, 1/4 and
1/5. One letter was addressed to Jageshwar Mahto.
In cross-examination he has deposed that Ramdhan is his
nephew. On 27.01.1994, he had submitted a written report to
the Police regarding his missing nephew. The Police had made an
enquiry on the basis of the said report. He was present when the
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dead body of Punit Mahto was recovered. The distance of the
pond from where the dead body was recovered was 400-500
yards. At a distance of 20-35 yards from the said place, there was
a number of hutments. He does not have any proof regarding the
letters which were sent by Rajendra Mahto from the jail. His
statement was recorded by the Police. He had not seen Rajendra
going with Punit. As per his knowledge, nobody had seen
Rajendra committing the murder of Punit.
On recall, this witness has proved his signature in the
fardbeyan which has been marked as Exhibit-2/2.
P.W.2 Raghu Rai has stated that on 07.02.1994 at 2:00PM,
he was in the school when Ramdhan Mahto and Manohar Mahto
came to him and Ramdhan Mahto begged him to save him as he
had committed the murder of the son of Jageshwar Mahto. He
went to Raidih, where Guljar Mahto and Niwaran Mahto had
disclosed about the child being buried. When he was coming out
of the school gate, he met Rajendra Mahto who put his head
down when he was asked as to why he had done such a heinous
act.
In cross-examination, he has deposed that he is a social
worker. When Ramdhan had come to the school, it was running.
Ramdhan Mahto had asked to save him. He did not have any
conversation with Rajendra Mahto. He did not disclose in the
school about the subject of his encounter with Ramdhan Mahto.
He was aware that the son of Jageshwar Mahto was traceless.
P.W.3 Guljar Mahto has stated that on 26.01.1994 at
8:30PM, when he was in his house Shobha Kant Mahto and
Niwaran Mahto had come and disclosed that Punit Mahto has
been taken on his bicycle by Rajendra Mahto towards the pond
and he has not yet come back. He had gone to the house of
Ramdhan Mahto who deterred in giving a proper answer and
later on said that he had left Punit Mahto near the pond. The
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pond as well as a well were searched with nets, but nothing could
be found. The search in the house of the relatives also did not
yield any result. He had gone to the Police Station where a station
diary entry was recorded. He had a land dispute with Ramdhan
Mahto. Rajendra Mahto, Sushila Devi and Manohar Mahto had
committed the murder and had buried the dead body in the hut
of Ramdhan Mahto. Radhu Rai had disclosed that Punit Mahto
has been found buried in the hut of Ramdhan Mahto. The body
was exhumed. He had become unconscious.
In cross-examination, he has deposed that he had not seen
Punit going with Rajendra Mahto. The distance between the pond
and the place where the dead body was recovered was 100 yards.
Ramdhan Mahto was staying in the house adjacent to his house.
P.W.4 Jageshwar Mahto has stated that on 26.01.1994 at
8:00PM on his returning to his home, his wife had disclosed that
his son Punit Kumar is missing since 5:00PM. She had disclosed
that Rajendra Mahto had taken away his son on a bicycle. He
had gone to his brother and thereafter, they went to Rajendra
Mahto, who initially hesitated but later on said that he had left
Punit Kumar Mahto near the pond. The pond as well as a well in
the village were searched, but Punit Kumar Mahto could not be
traced out. On the next day, his brother had reported the incident
to the Police. He has stated that on 07.02.1994, Radhu Rai had
come to his house at 2:30-3:00PM and disclosed that his son has
been murdered by Ramdhan Mahto and buried in the hut. Radhu
Rai had stated to him that this information was given to him by
Rajendra Mahto, Ramdhan Mahto and Manohar Mahto. Radhu
Rai had also stated that the involvement of the wife of Ramdhan
Mahto is also apparent. He had reached the hut from where the
dead body was recovered. By the time he had reached, the dead
body was already recovered.
In cross-examination, he has deposed that the Police had
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recorded his statement. There was animosity between his brother
and the family members of Ramdhan Mahto, the same was
because of a land. Except his wife, there is no witness, who had
seen Rajendra Mahto and Punit going together. In Raidih More,
nobody had seen Rajendra and Punit together. The hutment in
which the dead body was found was not used by Ramdhan and
his family members. About 8-10 huts from the hut where the
dead body was found, is the hut of Ramdhan Mahto where the
tenant of Ramdhan resides and besides the same is a place where
cattles are kept.
P.W.5 Niwaran Mahto has stated that in the morning of
26.01.1994, he was in his house. His nephew Punit Kumar
Mahto had returned from school at 12 noon. At 5:00PM, he was
standing in front of his house when Rajendra Mahto took Punit
on a bicycle towards the pond. He went to Raidih More and when
he returned at 8:00PM, he came to know that Punit has not yet
returned home. Rajendra Mahto was questioned, who initially
did not say anything, but on pressure being put upon him he
had stated that he had dropped Punit near the pond. A net was
thrown in the pond, but the boy could not be located. The matter
was reported to the Police on 27.01.1994 by Shobha Kant Mahto
and Guljar Mahto. They had searched for Punit for one week.
During this period, the wife of Ramdhan, Sushila Devi used to
come to her hut and used to smear it with earth. On 07.02.1994,
he came to know from Radhu Rai that Ramdhan Mahto and his
brother-in-law Manohar Mahto had gone to his house and
pleaded with him to save them. They had concealed the dead
body of Punit in the hut. At about 2:00-2.30PM, the Police had
reached the hut and recovered the body from inside the hut. The
Police had recorded his fardbeyan. He has proved his signature
as well as the signature of Shobha Kant Mahto upon the
fardbeyan which have been marked as Exhibit-2 and 2/1
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respectively. The dead body was thereafter taken to the hospital
for autopsy. The incident had occurred because of a land dispute
between both the sides.
In cross-examination, he has deposed that his fardbeyan
was recorded by the Police besides the hut of Ramdhan Mahto.
The dead body was not recovered from the coal depot. The hut of
Ramdhan Mahto from where the dead body was recovered was at
a lonely place. In the report which he had given to the Police
Station on 27.01.1994, he had not mentioned that Punit had
gone with Rajendra. He had not seen any marks of injury on the
body of Punit.
P.W.6 Putli Bala Devi is the mother of the deceased, who
has stated that at 5:00PM, Rajendra Mahto had taken away his
son Punit Kumar on a bicycle. She had seen both of them going.
Punit Kumar did not return and she had disclosed this fact to
her husband, who in turn spread the information to his family
and relatives. After 12 days, it came to her knowledge that
Rajendra Mahto had murdered her son and buried the dead body
in his house.
In cross-examination, she has deposed that there was a
strained relationship between the father of Rajendra Mahto and
her brother-in-law Guljar Mahto. When Rajendra had gone with
her son, there were no one present in her house. In her statement
before Police, she had disclosed that Rajendra had taken away
Punit on his bicycle.
P.W.7 Indradeo Singh was posted as an Officer-in-charge
of Harla P.S. and on 07.02.1994 at 3:00PM, he had heard a
rumour that a body is lying in the hutment of Ramdhan Mahto.
After making a station diary entry, he had proceeded to the place
of occurrence with all other police personnel. At 3:30PM, he had
reached Thakur Bandh and in presence of the witnesses, he had
conducted a search in the hut. On one side of the hut, some earth
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was found smeared and on digging, the dead body of a boy was
recovered. Shobha Kant had identified the body to be that of his
nephew Punit. He had recorded the fardbeyan of Niwaran Mahto
at the place of occurrence. He has proved the fardbeyan which
has been marked as Exhibit-3. He had prepared the inquest
report which has been proved and marked as Exhibit-4. He had
recorded the restatement of Niwaran Mahto and the statements
of Shobha Kant and Guljar Mahto. He had inspected the place of
occurrence which is a hut in the barn of Ramdhan Mahto at
Raidih. On the western side of the room, the dead body of Punit
Kumar was buried. The place is lonely, situated away from the
main village. He has stated that Raidih locality is at a distance of
500 yards from the place of occurrence and 200 yards from the
coal depot. He had prepared a sketch map of the place of
occurrence which has been proved and marked as Exhibit-5. He
had seized a shaft and a spade for which a seizure list was
prepared. The seizure list has been proved and marked as
Exhibit-6. The spade was produced from the Malkhana which
has been marked as Material Exhibit-I. The spade has been
marked as Material Exhibit-II. The blood-stained earth produced
in a polythene bag has been marked as Material Exhibit-III. He
had recorded the statement of the seizure list witness
Chandradeo Mahto. He had instituted the case and had taken
over investigation. He had recorded the statement of Radhu Rai.
Ramdhan Mahto and his wife were arrested by him from their
house. On 08.02.1994, the body of Punit Kumar was sent to the
hospital for conducting autopsy. He had recorded the statement
of the mother of Punit Kumar Mahto. On his transfer, he had
handed over the investigation on 08.02.1994 to Rajendra Bhagat.
He has proved the formal FIR which has been marked as Exhibit-
7.
In cross-examination, he has deposed that he had not
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mentioned in the diary that on 27.01.1994 Shobha Kant and
Guljar Mahto had got registered a sanha, though in their
statements, both had stated about the sanha. Save and except
the family members of Punit Kumar Mahto, there is no witness
on the episode of 26.01.1994 when Punit had gone with
Rajendra. He had not mentioned about any injury on the body of
Punit Kumar Mahto in the inquest report. The entire body was
decomposed. He had not recorded the statements of the persons
near the house of Niwaran Mahto. He had not recorded the
statement of the father of the deceased. Neither the informant,
nor any witness had given him any letter written by Rajendra
Mahto. The witness Shobha Kant had not stated before him that
when he returned home, he had come to know that Punit had
gone with Rajendra and had not returned back. He had not seen
any documents relating to the ownership of the concerned hut.
Radhu Rai as well as the family members of the deceased had
disclosed that the hut belongs to Ramdhan Mahto.
P.W.8 Rajendra Prasad Bhagat had taken over the
investigation from the earlier investigating Officer and had
submitted the charge sheet. He had received the post-mortem
report on 19.02.1994 and on 26.02.1994, he had recorded the
statement of Jageshwar Mahto. On 30.03.1994, the viscera was
sent to the forensic Science Laboratory, Patna.
In cross-examination, he has deposed that he had not sent
the blood-stained earth for examination.
P.W.9 Dr. Murli Manohar Sharma was posted as an
Additional Sub-divisional Medical Officer, Sub-Divisional
Hospital, Chas and on 08.02.1994, he had conducted autopsy on
the dead body of Punit Kumar Mahto and had found the
following:
(i) Body was putrefied. Maggots were
crawling over body. Skin was
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discoloured in patches. Mouth was
open. Both eyes were swollen and
open.
(ii) Internal examination- it was found that
scalp sutures were separated. No
external injury over scalp and skull
bone present. Scalp hair were easily
pulled out. In vertebrae, nothing
abnormal detected. Membranes were
intact and pale. Brain matter was
liquified.
(iii) On examination of walls, ribs and
cartilage, nothing abnormal was
detected.
(iv) Pleura was intact and greenish
discoloured.
(v) Mucosa membrane of larynx and
trachea were congested and soften.
Cartilages were intact. Pericardium
was greenish in colour. Cavity were
dialated and empty. Large vessels
were soften and intact. Walls of
abdomen were discoloured in patches
greenish to purple colour. Peritoneum
was soften. Teeth were loose in its
shocket. Mouth was congested.
Mucous membrane of stomach was
congested and inflated with gases.
Semi-digested food material present.
Mucosa of small-intestine was
congested and inflated with gas.
Digested food material was present. No
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fluid was present in the large intestine.
Only gases present. Liver was soft and
discoloured. Spleen was soft and
pulpy. Both kidneys were brown. In
bladder, nothing abnormal was
detected. In case of external and
internal genital nothing abnormal was
detected.
(vi) There was no injury, dislocation or
fracture on the body. No external or
internal injury in the body. No mark of
ligature on neck.
No definite opinion of cause of death could be ascertained
as the body was in the stage of putrefaction. The viscera was kept
for biochemical examination. He has proved the post-mortem
report which has been marked as Exhibit-8.
In cross-examination, he has deposed that there was no
external injury.
5. The statement of the accused was recorded under Section
313 Cr.P.C. in which he has denied his complicity in the murder
of Punit Kumar Mahto.
6. The defence has examined one witness in support of its
case:
D.W.1 Parsadi Yadav has produced the station diary of
Harla P.S. of the year 1994. He has proved Sanha No. 845 dated
27.01.1994 which has been marked as Exhibit-A. The station
diary entry No. 161 dated 07.02.1994 has been proved and
marked as Exhibit-A/1.
7. It has been submitted by Mr. Jitendra S. Singh, learned
counsel for the appellant that the appellant has been convicted
on the vague and flimsy charge of being last seen with the
deceased. It has been submitted that no independent witness has
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stated about seeing the appellant and the deceased. The evidence
of P.W.2 reveals that it was Ramdhan Mahto, who had begged
him to save him as he had committed the murder of Punit Kumar
Mahto, but his disclosure to the other witnesses seems to be at
variance regarding the involvement of the appellant. The
hutment from where the dead body was exhumed belonged to
Ramdhan Mahto. The letters purportedly written by the appellant
confessing to his guilt cannot be taken note of as the same had
emerged when the appellant was in custody and more so, when
in his 313 Cr.P.C. statement he has categorically denied of being
the author of those letters. In fact, the learned trial court has also
not considered the letters to be of any importance for the reasons
mentioned in the said judgement. Ramdhan Mahto, who is the
father of the appellant and against whom the arrow of suspicion
is primarily pointed, has been acquitted by the learned trial
court.
8. Mr. Pankaj Kumar, learned P.P. has submitted that the
prosecution has been successful in proving that the deceased
was last seen with the appellant and that the dead body of Punit
Kumar Mahto was recovered from the hutment of the father of
the appellant.
9. We have heard the learned counsel for the respective sides
and have also perused the trial court records.
10. It would transpire that admittedly, there are no
eyewitnesses to the murder of Punit Kumar Mahto. The case of
the prosecution is based on circumstantial evidence. The learned
trial court has discarded all other circumstantial evidence,
except: (a.) the deceased was last seen with the appellant and (b.)
the dead body was recovered from the house of the father of the
appellant.
11. As per P.W.1, he had come to know from the informant
(P.W.5) that the deceased had gone with the appellant on a
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bicycle to the house of Ramdhan Mahto situated in front of a
pond. Admittedly, P.W.1 had not seen the appellant and the
deceased together. P.W.3 in his cross examination has denied
seeing the appellant going with the deceased. P.W.4, who is the
father of the deceased had come to know from his wife (P.W.6)
that the appellant had taken away his son on a bicycle. So far as
P.W.5 is concerned, he is also not an eye witness to the incident
of the deceased being last seen with the appellant, though the
appellant had admitted before him that he had left the deceased
near the pond which would indicate about the acceptance of the
appellant that he had taken away the deceased. However, such
admission would not be of any consequence, as the same was
stated under coercion and duress which is apparent from the
evidence of P.W.5. He has also stated about the disclosure made
by P.W.2 regarding the confession made by the accused persons
of concealing the dead body of Punit Kumar Mahto, but such
disclosure does not include the name of the appellant. P.W.6,
however, is the only witness who had seen her son going with the
appellant on a bicycle. There were several houses near the house
of P.W.6 and the distance between her house and the place of
occurrence is 500 yards. It was 5:00PM, when the incident of the
appellant taking away the son of P.W.6 occurred and it indeed
appears to be strange that the locality, though had a substantial
populace, but none had seen the said occurrence. Moreover, it
seems that though the other accused persons were frequenting
the said hut, not much has been said about the appellant. In
fact, the needle of suspicion has been consistently pointed
towards Ramdhan Mahto, the owner of the hutment but he has
been acquitted by the learned trial court. There does not appear
to be any circumstance through which the appellant can be held
guilty for the offence of murder. Mr. Singh, learned counsel for
the appellant has submitted that Section 106 of the Evidence Act
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would not be applicable to the case of the appellant and in such
context, reference has been made to the case of M. Vijayakumar
v. State of Tamil Nadu reported in (2024) 4 SCC 633, in which
the following has been noted:
"25. We are at a loss to understand as to
how Section 106 of the Evidence Act could be
applied in the case on hand against the
appellant in view with facts narrated above.
This section is an exception to the general rule
laid down in Section 101 which casts burden of
proving a fact on the party who substantially
asserts the affirmative of the issue. Section 106
is not intended to relieve any person of that duty
or burden. On the contrary, it says that when a
fact to be proved, either affirmatively or
negatively, is especially within the knowledge of
a person, it is for him to prove it. This section, in
its application to criminal cases, applies where
the defence of the accused depends on his
proving a fact especially within his knowledge
and of nobody else.
26. In short, Section 106 of the Evidence
Act cannot be used to shift the burden of proving
the offence from the prosecution to the accused.
It can only when the prosecution led evidence,
which, if believed, will sustain a conviction or
which makes out a prima facie case, that the
question of shifting the onus to prove such fact(s)
on the accused would arise. (See the decision
in Sawal Das v. State of Bihar [Sawal
Das v. State of Bihar, (1974) 4 SCC 193 : 1974
SCC (Cri) 362 : AIR 1974 SC 778] .)"
12. Since we have already come to a conclusion that the
prosecution has failed to sustain the allegations levelled against
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the appellant, the question of shifting the onus upon the
appellant in terms of Section 106 Evidence Act evaporates.
13. We, therefore, on the basis of what has been discussed
above, set aside the judgment and order of conviction and
sentence dated 10.09.1997 passed by Sri Abhaya Shankar
Prasad, learned Additional Sessions Judge, Bokaro in S.T. No.
187/95.
14. This appeal is allowed.
15. Since the appellant is on bail, he is discharged from the
liability of his bail bonds.
16. Pending I.A.s, if any, stands closed.
(RONGON MUKHOPADHYAY, J.)
(ARUN KUMAR RAI, J.)
Jharkhand High Court, Ranchi
Dated the 12th Day of June, 2025
Preet/N.A.F.R.
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