Jharkhand High Court

Gurudayal Yadav Son Of Late Manchan ... vs The State Of Jharkhand on 22 September, 2025

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

                                                   2025:JHHC:29250-DB


     IN THE HIGH COURT OFJHARKHAND AT RANCHI
              Cr. Appeal (D.B) No. 610 of 2002
  [Against the judgment of conviction dated 07.09.2002 and order of
  sentence dated 09.09.2002 passed by learned Sessions Judge,
  Dumka in Sessions Trial No. 70 of 1999]

1. Gurudayal Yadav son of Late Manchan Mahto.
2. Shambhu Kumhar Son of Metu Kumhar,
3. Jhupar Manjhi son of Bajit Mahto.
4. Makalu Yadav son of Hiro Mahto.
   All residents of village-Rakodih, P.S.- Saraiyahat, District-
   Dumka.                                      .... Appellants
                            Versus
   The State of Jharkhand                      .... Respondent
                             With
              Cr. Appeal (D.B) No. 674 of 2002


  Shankar Mahto, son of Nagdi Mahato, resident of village-
  Rakodih, P.S.- Saraiyahat, District- Dumka.
                                                .... Appellant
                            Versus
  The State of Jharkhand                       ..... Respondent
                             --------
  For the Appellants   : Mr. Rajeeva Sharma, Sr. Advocate.
                          (In both Cases)
  For the Respondents : Mr. Azeemuddin, A.P.P.
                          (In both Cases)
                     PRESENT
  CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
   HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                       ---------
                           JUDGMENT

C.A.V. On 25.08.2025 Pronounced On:22/09/2025 Per- Pradeep Kumar Srivastava. J.

1. Heard Mr. Rajeeva Sharma, learned senior counsel for the

appellants as well as Mr. Azeemuddin, learned Additional

Public Prosecutor appearing for the State.

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2. The appeal of the appellant no.3 namely Munna Yadav and

appellant no.4 Nagadi Mahto of Cr. A (DB)No. 610 of 2002

has been abated vide order dated 30.07.2025, due to their

death. Now the appeal is being considered in respect of

surviving appellants.

3. Above named appellants along with deceased appellants

whose appeal abated have challenged their conviction and

sentence passed by learned Sessions Judge, Dumka in

Sessions Trail No. 70/1999 whereby and whereunder all

the above named appellants have been held guilty for the

offence under Section 302 read with Section 34 of the I.P.C.

and sentenced to undergo imprisonment for life.

Factual Matrix

4. Factual matrix giving rise to this appeal is that one Upasi

Devi (P.W.11) has lodged the F.I.R. stating inter alia that on

06.01.1998 at about 02.30 P.M. her husband Prabhu Dayal

was taking lunch in his outdoor house, then all of sudden

Ghanshyam Yadav (declared juvenile) started raising a

scuffle on account of share in household property,

meanwhile Gurudayal Yadav, Shankar Yadav and

Shambhu Kunwar armed with danda, tangi approached

there, then informant's husband scared and left his lunch

and entered into his room and closed the door from inside.

It is further alleged that the accused persons started

beating the door, thereafter accused persons namely

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Munna Yadav, Nagadi Mahato, Jhopar Manjhi and Maklu

Yadav also came there and they forcibly broke open the

door and take out the informant's husband dragging from

the room and brought towards courtyard and thereafter,

assaulting him by lathi, danda and tangi carried away to

the field of Ganauri Kunwar. It is further alleged that all the

accused persons caused severe injuries to the informant's

husband on his chest, abdomen and by pressing his throat

killed him on the spot. The informant and her son and

others attempted to rescue, but in vain.

5. On the basis of fardbeyan of the informant (Upasi Devi

P.W.11) Saraiyahat P.S. Case No. 02 of 1998 was registered

for the offence under Section 302/34 of the I.P.C. After

completion of investigation, two charge-sheets were

submitted against all the above named appellants who

claimed to be tried. After conclusion of trial, impugned

judgment of conviction and sentence was passed.

6. Learned counsel for the appellants has vehemently argued

that altogether 22 witnesses were examined in this case in

order to substantiate the charges leveled against the

appellants. All witnesses of facts are family members of the

informant. Most of the witnesses of facts including mother

of the deceased, sisters of deceased and other relatives who

have not been declared hostile, but specifically stated that

the deceased was an old person and habitual drunker and

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on the date of occurrence, he has taken heavy drink,

therefore he could not control himself and fell down on the

woods and sustained injuries on his chest and died, but

wife and sons of the deceased due to dispute regarding

partition of household properties have fabricated a false

story regarding assault given to the deceased at his home

and thereafter, dragging him towards the field which is the

place of occurrence situated at a distance of 50 meters. The

manner of occurrence and weapon of assault alleged to be

used by the appellants by the so called eye-witnesses does

not correspond with the injuries as mentioned in the post-

mortem report of the deceased, wherein there is no head

injury or any injury caused by sharp cutting weapon and

the cause of death is also opined to be fracture of ribs which

also may be caused due to fall on hard surface. It is further

submitted that the first investigating officer of this case who

has conducted considerable part of the investigation

including the inspection of place of occurrence has not been

examined by the prosecution. Therefore, in this case where

as per prosecution story as projected by informant there are

two place of occurrence, but none of them has been proved

by cogent and reliable evidences. The second investigating

officer Sub-Inspector Param Hansraj has been examined as

P.W.22, but he has simply recorded statements of some

witnesses and admittedly, he has not conducted any

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inspection of place of occurrence and the witnesses

interrogated by him are hearsay witnesses. Therefore, the

defence has also been prejudiced in drawing the attention of

ocular witnesses towards material contradictions and

discrepancies. It is further submitted that the learned trial

court has committed serious error of law in not considering

the evidence of prosecution witnesses itself who have given

the true account of the occurrence and no reason has been

recorded by the learned trial court for disbelieving the

evidence of the witnesses who have simply stated that the

deceased died due to fall under heavy drunken state.

Therefore, the prosecution has itself relied upon two

contradictory stories one inculpating the accused and other

is absolutely exculpatory nature. Under such circumstance,

the legal principle is that where two views are possible one

in favour of accused and another inculpating him then, the

view favouring the accused must be accepted. In this view of

the matter, the judgment of conviction and order of

sentence of the appellants is not sustainable under law,

which is fit to be set aside. Appellants deserve acquittal

from the charges leveled against them.

7. On the other hand, learned Additional Public Prosecutor

appearing for the State defending the impugned judgment

has submitted that the impartial witnesses although closely

related to the deceased, could not be disbelieved as they

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were eye-witnesses of the occurrence and in their testimony,

nothing has been elicited to discredit their evidence. The

learned trial court has very wisely and in threadbare

manner apprised and appreciated the overall testimony of

witnesses and arrived at right conclusion regarding the guilt

of the appellants. There is no merit in this appeal which is

fit to be dismissed.

8. We have gone through the record of the case along with

impugned judgment in the light of contentions raised on

behalf of both side.

9. It appears that in order to substantiate charges leveled

against the appellants, altogether 22 witnesses were

examined.

10. Apart from the testimony of witnesses following documentary

evidences has been adduced:-

   (i)     Exhibit-1:- Post Mortem Report.

   (ii)    Exhibit-2:- Signature of Indrapal Mahto on inquest

           report.

(iii) Exhibit-3:- Signature of Upasi Devi on Fard beyan

(iv) Exhibit-4:- Formal F.I.R.

   (v)     Exhibit-5:- Fard Beyan.

   (vi)    Exhibit-6:- Endorsement on Fardbeyan.

   (vii) Exhibit-7:- Inquest Report.

However, the defence has got exhibited certified copy

of judgment of criminal appeal No. 204/81, 56/86 of

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the learned 3rd Additional Sessions Judge, Dumka as

Ext-A.

11.P.W.1:- Jagadi Devi is the mother of the deceased.

According to her evidence, on the date of the occurrence in

the evening she along with her elder son Prabhu Dayal

(deceased) had gone to market where Prabhu Dayal

consumed huge liquor and at the time of returning, he was

coming anyhow falling hither and thither and in that

course, he sustained injuries due to fall and died. This

witness has not been declared hostile by the prosecution

and in her cross-examination also has reiterated the same

that her deceased son was a habitual drinker and has been

died due to fall in state of intoxication.

P.W.2:- Parmeshwari Devi is the sister of the deceased who

has also corroborated the testimony of P.W.1 in toto.

According to her evidence, on the occasion of 'Paush

Sankranti', she had come to her paternal home. Her brother

(Prabhu Dayal) under heavy consumption of liquor and

intoxication was returning from market and fell down

several times and died.

P.W.3:- Sundari Devi is also the sister of the deceased. She

has also stated in the same manner as P.W.1 and P.W.2

regarding cause of death of the deceased. She has also been

declared hostile by the prosecution.

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P.W.4:- Laxman Kumar is a hearsay witness who heard

hulla and went to place of occurrence and saw Prabhu

Dayal was lying on road under state of intoxication. Nothing

was told to him about the occurrence by any family

members of the deceased.

P.W.5 Borhal Mahto is local independent witness has

stated that he heard about the death of the deceased due to

fall under state of intoxication.

P.W.6 Anirudh Prasad Yadav has been declared hostile by

the prosecution. He has also stated that the deceased died

due to consumption of liquor and under heavy intoxication,

he fell down and sustained injuries.

P.W.7 Dr. C.P. Sinha has conducted autopsy on dead body

of the deceased and found following ante mortem injuries:-

i) Diffused swelling over left side of front of chest and

diffused swelling over back of chest left side.

ii) On dissection:- There was fracture of 4th and 5th

ribs of left side on further dissection plura and lung left

found lacerated and collection of blood fluid inside the

thoracic cavity.

iii) Cause of death is opined due to hemorrhage and

shock as a result of injury mentioned. Death caused by

hard and blunt substance.

He has proved the post-mortem report which is marked

as exhibit-1.

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P.W.8 Moti Lal Murmu has been declared hostile by the

prosecution. He has only heard about the death of the

deceased due to heavy intoxication.

P.W.9 Budhdeo Murmu has expressed nothing about the

cause of the death of the deceased and declared hostile.

P.W. 10 Indrapal Mahato is a witness of inquest report and

has proved his signature as Exhibit-2. He has expressed

nothing and have no knowledge about the occurrence.

P.W.12 Manori Kumar was catching fish at Joria and saw

that wife of Prabhu Dayal was going weepingly shouting

that her husband has been killed by her dewar and other

family members. He has only seen the dead body of the

deceased and nothing else.

P.W.13 Mahendra Kumar is also a hearsay witness who

went to the place of occurrence after hearing hulla and saw

dead body of the deceased. This witness has been declared

hostile by the prosecution.

P.W.14 Nunwati Devi has also heard about the murder of

the deceased, but had expressed no personal knowledge

about the occurrence. She also denied any statement

recorded by the police. Therefore, she has also been

declared hostile by the prosecution.

P.W.18 Tarini Prasad Yadav has only seen the dead body

of the deceased and stated nothing else, hence this witness

was also declared hostile by the prosecution and also

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denied any statement recorded under Section 161 of the

Cr.P.C.

P.W.20 Subhash Chandra Yadav is son of the deceased,

who was not present in the house on the date of occurrence,

but after getting information from his younger brother

Radhey Shyam, he returned then his mother Upasi Devi

disclosed him about the occurrence. Therefore, this witness

is also a hearsay witness.

P.W.21 Anil Mahato has also been declared hostile by the

prosecution.

P.W.22 Param Hasnraj is the second investigating officer

who has admitted that he has not visited the place of

occurrence rather he has simply recorded the statement

under Section 161 of the Cr.P.C. of the witnesses namely

Amin Mahato, Kishundev Yadav, Bhim Prasad Yadav,

Nunwati Devi, Mandeo Kunwar, Manauri Kunwar, Utilal

Murmu, Parmeshwar Manjhi, Budhdeo Murmu, Dayanand

Raut, Banarasi Yadav. He also admits that nothing has

been seized in this case from the place of occurrence. He

also admits that witness Bhim Prasad Yadav (P.W.15) has

not stated before him that deceased was dragging out from

his house by the accused persons and thereafter, given axe

blow from back side by the axe and this witness also not

stated before him that Guru Dayal was pressing the neck of

the deceased. None of the witnesses stated that after death

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of the deceased also a tangi blow from backside was

inflicted to deceased.

12.From the testimony of the aforesaid witnesses, the

prosecution story as projected in F.I.R. does not find any

corroboration rather cause of death of the deceased is also

otherwise than expressed by the so called eye-witnesses.

13.The prosecution case rest on the evidence of following

witnesses:-

P.W.11 Upasi Devi is the informant and wife of the

deceased. According to her evidence, while her husband was

taking lunch at about 01.30 - 02.00 PM meanwhile

Ghanshyam Yadav and Gurudayal Yadav started scuffling

with her husband. Her husband was assaulted by tangi on

chest and by stone. Thereafter, her husband was dragged

out from the house and his neck was pressed by Guru

Dayal. In her cross-examination, she further exaggerates

the story and stated that her husband went inside the

house, bolted the door from inside then accused persons

broke open the door by tangi and also assaulted by tangi on

chest to her husband and Shankar assaulted by stone on

the chest and again by tangi. She and her son were also

threatened to be assaulted. She also admits that her

statement was recorded on the next day when the police

seized the dead body of her husband.

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P.W.15 Bhim Prasad Yadav was drinking water at a

distance of 50 steps at that time he heard hulla and scuffle

between deceased and his brother. He has stated like eye-

witness of the occurrence that Guru Dayal, Ghanshyam

Yadav and Shankar Mahato dragged out the deceased

Prabhu Dayal from his house towards courtyard and gave

tangi blow from the back side on his neck and Guru Dayal

pressed neck of the deceased while Shankar and

Ghanshyam Yadav was holding the deceased Prabhu Dayal,

due to strangulation he died. His attention has been drawn

towards the statement recorded under Section 161 of the

Cr.P.C., but could not be get explained by the investigating

officer due to his non-examination.

P.W. 17 Krishnadeo Mahato is the grand-son of the

deceased and has claimed to be present at the place of

occurrence at the house of the deceased. According to him,

Prabhu Dayal was taking lunch meanwhile all the accused

persons came there and started claiming their share in the

house. Due to fear Prabhu Dayal entered into his room

then, accused persons broke open the door and dragged

him out and assaulted him.

P.W. 16 Radheyshyam Yadav and P.W.19 Hari Kishore

Yadav are the sons of deceased and they have stated in the

same manner as their mother P.W.11 has stated in her

deposition.

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12. The trend of testimony of above witnesses and manner of

assault caused to deceased, part of body inflicting injuries

to the deceased as well as cause of death due to

strangulation appears to be self-contradictory, in view of the

fact that post-mortem report of the deceased did not find

any mention of such type of injuries and there was only one

external injury and another injuries were internal and

found 4th and 5th ribs was fractured. There was no ligature

mark and it is also opined by the conducting doctor that

such type of injury may be caused due to fall on hard

surface. Moreover, closed relatives of the deceased including

his mother and sisters and other independent witnesses

have categorically stated that the deceased was habitual

drunker. On the date of occurrence also he had consumed

heavy drink is supported by mother and sisters of the

deceased. He was abusing to several persons and coming

falling hither and tither in the state of intoxication,

sustained injuries and died in the way while returning to

home. Therefore, the testimony of above eye-witnesses that

all incident took place inside the house appears to be highly

improbable and doubtful. The place of occurrence is also

shown to be different places. The first investigating Officer

of the case has not been examined to prove the exact place

of occurrence. The claim of the informant and other eye-