Jharkhand High Court
Against The Judgment And Order Of ... vs The State Of Bihar (Now Jharkhand) on 12 June, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Neutral Citation No. ( 2025:JHHC:15244-DB )
Criminal Appeal (DB) No. 70 of 1999 (R)
[Against the judgment and order of conviction and sentence dated
17.02.1999 (sentence passed on 22.02.1999) passed by Shri Sudarshan
Upadhyay, learned 1st Addl. Sessions Judge, Chatra in S.T. No. 565 of
1993]
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Uttim Mahto alias Uttim Yadav, S/o Kail Mahto, R/o Village
Dantar, P.S.- Basisth Nagar, District- Chatra.
.... .... Appellant
Versus
The State of Bihar (now Jharkhand) .... .... Respondent
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PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. B.K. Dubey, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
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C.A.V. on 08/04/2025 Pronounced on 12/06/2025
Per Rongon Mukhopadhyay, J.
Heard Mr. B.K. Dubey, learned counsel for the
appellant and Mrs. Priya Shrestha, learned Spl. P.P. for the State.
2. This appeal is directed against the judgment and
order of conviction and sentence dated 17.02.1999 (sentence
passed on 22.02.1999) passed by Shri Sudarshan Upadhyay,
learned 1st Addl. Sessions Judge, Chatra in S.T. No. 565 of 1993,
whereby and whereunder, the appellant has been convicted for the
offence punishable u/s 302/34 of the IPC and has been sentenced
to R.I. for life.
3. The prosecution case arises out of the fardbeyan of
Saraswati Devi recorded on 14.05.1993, in which, it has been
stated that the informant is the wife of Baleshwar Mahto. On
14.05.1993 the informant was in the house of her parents. It has
been alleged that the accused persons who are the neighbours of
her parents had stored husk in their house and on 13.05.1993
some husks were eaten away by cows. The wife of the accused Kail
Mahto had suspected that the cow of Shankar Mahto, the father of
the informant had eaten away the husk. The led to a quarrel
Neutral Citation No. ( 2025:JHHC:15244-DB )
between the wife of Kail Mahto and the mother of the informant
which however was pacified. It has been stated that today i.e.
14.05.1993 the informant along with her mother and sister had
gone to the forest with the cattle for the purposes of grazing. The
mother of the informant had met Kail Mahto who started abusing
her which was protested by her. It has been alleged that in the
meantime Uttim Mahto (appellant) had arrived and caught hold of
the mother of the informant while Kail Mahto repeatedly assaulted
her with an axe which resulted in her death.
Based on the aforesaid allegations Basisthnagar
P.S. Case No. 22 of 1993 was instituted u/s 302/34 of the IPC
against Kail Mahto and Uttim Mahto. 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. 565 of 1993. Charge was framed against
the accused u/s 302/34 of the 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 eight
witnesses in support of its case.
5. P.W.1 (Budhan Singh Sundi) has proved the formal
FIR which has been marked as Exhibit-1.
6. P.W.2 (Sabita Kumari) has stated that she was
going with the cattle for grazing and her mother was near the
Chiraita tree about 500 yards from her house when Kail armed
with an axe and Uttim had arrived. Uttim had caught hold of her
mother while Kail Mahto had given axe blows which resulted in the
death of her mother. The husk of Kail Mahto was eaten away by
some animals which enraged Kail and which resulted in the
assault. She had seen the occurrence. There was a quarrel with
respect to eating away of the husk by animals just a day prior to
the assault. She has stated that there were no other children of her
age who had gone to graze cattle. Just prior to the incident the Sun
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had already risen in the horizon. There were no villagers present at
the place of occurrence. She had raised a cry of alarm when her
mother was being assaulted. No quarrel had taken place between
her parents and the accused.
On an application u/s 311 Cr.P.C. having been
allowed by the learned trial court this witness was re-examined, in
which, she has stated that she and her sister Saraswati Devi had
reached the place of occurrence after half an hour. She was told by
Yasin Mian, Birendra Thakur and Jyotish Mahto that Kail Mahto
had become mad and after committing the assault had fled away.
Uttim Mahto had not committed assault upon her mother.
7. P.W.3 (Anirudh Singh) has proved his signature on
the fardbeyan which has been marked as Exhibit-2.
8. P.W.4 (Bhuneshwar Yadav) was in the market when
on hearing a cry of alarm he had rushed to Chiraita Tand where he
had seen Sohri Devi lying dead. Her two daughters Sabita Devi and
Saraswati Devi were crying. He had put his signature on the
inquest report.
9. P.W.5 (Jagdish Mahto) has stated that the incident
is of two years back. He was in his house having breakfast when he
heard the cry of alarm from the daughter of Shankar Mahto at
which he reached the said place but could not find anyone. The
dead body of the wife of Shankar Mahto was lying. The daughter of
Shankar Mahto namely, Saraswati Devi had disclosed that Uttim
Yadav had caught hold of her mother while Kail Mahto had assault
her with an axe. He had seen Uttim Mahto going towards the
house.
In cross-examination, he has deposed that he had
seen Uttim not rushing but going slowly. There were no blood
stains on the cloths of Uttim.
10. P.W.6 (Saraswati Devi) is the informant and the
daughter of the deceased who has stated that the husk which was
kept in the house of Kail Mahto was devoured by some cattle
Neutral Citation No. ( 2025:JHHC:15244-DB )
belonging to some other person. Kail Mahto as well as his wife
Dukhni had abused her mother Sohri Devi. She has stated that her
uncle Kail Mahto had gone to graze his cattle to Chiraita Tand and
was followed by her mother who also had gone with her cattle.
Behind her mother Uttim also went to Chiraita Tand and she and
her sister were bringing up the rear. At Chiraita Tand Kail Mahto
once again started abusing her mother who protested at which Kail
Mahto had assaulted her mother with an axe on head as a result of
which she fell down. Uttim Mahto also assaulted her mother and
Kail Mahto once again struck her with the axe. She and her sister
started shouting at which Jagdish Mahto, Abid Mian, Birendra
Thakur and other villagers came running. On arrival of the
villagers both the accused persons had fled away. The Police had
recorded her statement.
In cross-examination, she has deposed that when
her mother went out of the house she was in the house. She had
not accompanied her mother. She had not seen any other villager
going with their cattle for grazing. Her mother had left at 7:30 A.M.
and she and her sister had gone after less than 30 minutes. When
Kail Mahto was abusing her mother, she was in the house. Uttim
had a lathi in his possession.
In cross-examination on recall she has stated that
when she had reached the place of occurrence Yasin Mian, Jagdish
Mahto and Birendra Thakur had disclosed that Kail Mahto had fled
away after committing the assault. Uttim Mahto did not have any
role in the murder of her mother.
11. P.W.7 (Dr. Nitya Nand Mandal) was posted as a
Civil Assistant Surgeon, in Sub Divisional Hospital, Chatra and on
14.05.1993 he had conducted autopsy on the dead body of Sohri
Devi and had found the following:
(i) Deformity of right face, right mandible was
fractured. Lacerated wound over right cheek ½"
x ¼" brownish colour over front of right pinna.
Neutral Citation No. ( 2025:JHHC:15244-DB )
(ii) Lacerated cut injury over right pinna ¼" x 1/6"
brownish colour.
(iii) Incised wound over back of occipital region 4" x
2". Brain matter was protruding from the wound.
(iv) Incised wound behind right pinna 2" x 1"
reddish brown colour.
(v) Incised wound 1½" x ½". 3" above right pinna
reddish brown colour.
(vi) Incised wound 1" x ¼" above injury no. ii.
The cause of death was opined to be due to
haemorrhage and shock as a result of head and face injury. He has
proved the post-mortem report which has been marked as
Exhibit-3.
12. P.W. 8 (Shankar Mahto) has been tendered by the
prosecution.
13. The statement of the accused was recorded u/s 313
Cr.P.C. in which he has denied his complicity in committing the
murder of Sohri Devi.
14. The defence has examined one witness in support
of its case.
15. D.W.1 (Yasin Mian) has stated that Shankar Mahto
had reached the place of occurrence after 10-15 minutes from the
time he had reached and after half an hour the daughters of
Shankar Mahto had arrived.
16. It has been submitted by Mr. B.K. Dubey, learned
counsel for the appellant that P.W.2 and P.W.6 claim themselves to
be the eyewitnesses but their evidence on recall has given a
different dimension to the allegations to the effect that apart from
ruling out the culpability of the appellant in committing the
murder they have also denied to have seen the incident. The only
independent witness being P.W.5 has also supported the fact that
when he had reached the place of occurrence there were no one
present and the dead body of Sohri Devi was lying on the ground.
17. Mrs. Priya Shrestha, learned Spl. P.P. for the State
has submitted that in their initial version P.W.2 and P.W.6 have
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claimed themselves to have seen the occurrence and specific role of
catching hold of the deceased has been attributed to the appellant.
18. We have heard the learned counsel for the
respective parties and have also perused the Trial Court Records.
19. The fardbeyan suggests that the murder of the
mother of the informant had taken place on account of a fall out
relating to the suspicion of Kail Mahto and his wife about the cattle
of Shankar Mahto, the father of the informant devouring the husk
of Kail Mahto and which had earlier led to a bout of abuses mainly
unfurling from the mouth of Kail Mahto. Kail Mahto is said to have
essayed the main role having assaulted Sohri Devi repeatedly with
an axe, the postmortem report being a testimony to such brutal
assault. The appellant is alleged to have caught hold of the
deceased which according to the prosecution had facilitated in
committing the assault by Kail Mahto.
20. P.W.2 and P.W.6 in their evidence on recall have
clearly stated that they had arrived at the place of occurrence after
half an hour, thus diluting their earlier version of having witnessed
the assault. Even if we discard the volte face of P.W.2 and P.W.6 on
their examination on recall the prosecution even in such
circumstances has not been able to prove its case beyond all
reasonable doubts. P.W.2 in her evidence though has claimed to
have witnessed the assault but she has not even whispered about
the presence of her sister Saraswati Devi (P.W.6). P.W.6 on the
other hand has stated that she and her sister (P.W.2) were
following her mother for the purposes of grazing the cattle. The
cross-examination of P.W.6 reveals that she was in the house when
her mother had left for Chariata Tand and she was not a witness to
the abuses given by Kail Mahto. It is to be borne in mind that in
course of such abuses the assault with an axe is said to have taken
place and such aspect would rule out the claim of P.W.6 who have
witnessed the assault. Only one independent witness in the form of
P.W.5 has been examined by the prosecution who on reaching the
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place of occurrence had not seen the accused persons. He had also
stated about the disclosure made by P.W.6 but has not mentioned
the presence of P.W.2. He has stated about seeing the appellant
going at some distance at a leisurely pace and there was no blood
stains on the wearing apparels of the appellant. The apparent
contradiction in the version of the witnesses rules out the status of
P.W.2 and P.W.6 as eyewitnesses to the occurrence. There is no
other evidence which would substantiate the allegation of the
appellant as one of the assailants.
21. We, therefore, on the basis of the discussions made
hereinabove set aside the judgment and order of conviction and
sentence dated 17.02.1999 (sentence passed on 22.02.1999)
passed by Shri Sudarshan Upadhyay, learned 1st Addl. Sessions
Judge, Chatra in S.T. No. 565 of 1993.
22. This appeal is allowed.
23. Pending I.As., if any, stands closed.
24. Since the appellant is on bail he is discharged from
the liability of his bail bond.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 12th day of June, 2025.
A. Sanga /-
