Patna High Court
Mukesh Mahto @ Mantu vs The State Of Bihar on 1 February, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.240 of 2017
Arising Out of PS. Case No.-224 Year-2014 Thana- MAHARAJGANJ District- Siwan
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Mukesh Mahto @ Mantu Son of Bidya Mahto, aged about 22 Years , Resident
of Village- Takkipur, Dhanuk Tola, P.S.- Maharajganj, District- Siwan Binar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Yogesh Chandra Verma, Sr. Advocate
Ms. Kumari Anupam, Advocate
For the State : Mr. Sujit Kr. Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 01-02-2024
The present appeal has been filed under Section 374(2)
of the Code of Criminal Procedure, 1973 (hereinafter referred as
'Cr.P.C.') challenging the order of conviction dated 01.12.2016
and order of sentence 08.12.2016 passed by learned Vth Additional
Sessions Judge, Siwan in Sessions Case No. 136 of 2015, arising
out of Maharaj Ganj P.S. Case No. 224 of 2014 dated 05.08.2014,
wherein the appellant has been convicted for the offence
punishable under Sections 302, 323 & 307 and he has been
sentenced to undergo R.I. for life and also to pay a fine of Rs.
50,000/- (Fifty Thousand Rupees), for the offence punishable
under Section 302 of the Indian Penal Code. No separate
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punishment is required to be given for the offences punishable
under Section 323, 307 of Indian Penal Code. In case of default in
payment of fine, the convict shall undergo an additional period of
R.I. of six months.
2. Heard learned Senior Advocate Mr. Yogesh Chandra
Verma assisted by Ms. Kumari Anupam for the appellant and Mr.
Sujit Kr. Singh, learned A.P.P. for the Respondent-State.
3. The prosecution case, in brief, is as under:-
3.1. On 04.08.2014, at about 08:30 pm, when the
daughter-in-law of the informant, namely Lal Munni Devi, aged
about 40 years, was washing her hand at tube-well in front of the
house, his neighbour Mukesh Mahto @ Mantu, aged about 26
years, son of Bidya Mahto, arrived and assaulted his daughter-in-
law by brick by which her head was torn. The female members and
children of the family started weeping and crying. Then he rushed
there from the bathan and saw his daughter-in-law in injured
condition, wet in blood. He protested Mukesh on which he started
assaulting him also. The cousin grandfather of Mukesh, namely
Subedar Mahto, aged about 55 years, came having a lathi in his
hand and assaulted him by lathi. With the help of his family
members and villagers, he brought his injured daughter-in-law Lal
Munni Devi to P.H.C. Maharaj Ganj where she died in course of
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treatment. Mukesh Mahto @ Mahto has, with intention to kill her,
brutally assaulted her by brick and she succumbed to injuries.
4. After registration of the F.I.R., the Investigating
Officer started the investigation and during the course of the
investigation, recorded the statement of the witnesses and prepared
the Inquest Report. The dead body of the deceased was sent for
conducting the post mortem. After investigation was over, the
Investigating Officer filed the charge-sheet against the
appellant/accused before the concerned Magistrate Court. As the
case was exclusively triable by the Court of Sessions, the learned
Magistrate committed the same to the Sessions Court where the
same was registered as Sessions Case No. 136 of 2015.
5. During the course of the trial, the prosecution has
examined seven witnesses whereas the defence has examined two
witnesses. The prosecution has also produced the documentary
evidence. Thereafter, statement of the accused under Section 313
of the Code came to be recorded. After conclusion of the trial, the
Trial Court passed the impugned order against which the
convict/appellant has preferred the present appeal.
6. Learned counsels for the appellant would mainly
submit that though the prosecution has projected PW-1, PW-3 and
PW-5 as an eye-witnesses, in fact, the said witnesses have not seen
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the occurrence in question and they are projected as eye-witnesses.
It is further submitted that the said witnesses are the near relatives
of the deceased and no independent witnesses has been examined
by the prosecution. It is also submitted that there are major
contradictions and improvement in the deposition of the witnesses
and, therefore, the Trial Court ought to have given the benefit of
doubt to the present appellant. It is pointed out from the record
after referring to the deposition of the witnesses that though, as per
the case of the prosecution, fardbeyan of the informant was
recorded at 10:30 p.m., the Police Officer, namely Ugra Nath Jha,
who has recorded the fardbeyan, has not been examined by the
prosecution. It is submitted that the said witness is the material
witness, despite which the prosecution has failed to examine him
as prosecution witness and, in the facts of the present case, when
the said witness is not examined, it was fatal to the prosecution.
7. Learned Senior Advocate would, thereafter, submit
that though the PW-5 (Informant), who is the father-in-law of the
deceased, has given his fardbeyan in which he has not stated that
there are eye-witnesses to the occurrence in question i.e. PW-1
Kiran Devi & PW-3 Ranjan Kumar, however, thereafter, the PW-1
and PW-3 were projected as eye-witnesses.
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8. Learned counsels would thereafter submit that, as per
the fardbeyan given by PW-5 (Informant), the deceased died when
she was in P.H.C. Maharaj Ganj. However, during the course of
the trial, while giving deposition before the Court, the said witness
has stated that after giving some treatment in P.H.C. Maharaj Ganj,
the concerned Doctor referred the injured to the Sadar Hospital,
Siwan for further treatment and when they reached at Sadar
Hospital, Siwan, the injured succumbed to the injuries. It is further
submitted that even two other so-called eye-witnesses i.e. PW-1
and PW-3 have also stated before the Court that when the injured
was taken from P.H.C. Maharaj Ganj to Sadar Hospital, Siwan, the
injured died on the way. Thus, there are major contradictions in the
depositions of the so-called eye-witnesses.
9. Learned counsels further submit that even as per the
case of the prosecution, the informant also sustained injuries when
Subedar Mahto gave blow of lathi on his head. It is the case of the
prosecution that the informant also took the treatment in P.H.C.
Maharaj Ganj as well as Sadar Hospital, Siwan. None of the
Doctors of the said hospital has been examined by the prosecution
nor any injury certificate of the informant was placed on record. It
is further submitted that even no motive has been attributed to the
appellant/accused for commission of the offence in question. At
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this stage, learned Senior Advocate further submits that even the
so-called brick by which the blow was given to the deceased was
not recovered by the Investigating Officer nor the so-called blood-
stained clothes of the deceased were seized and sent to F.S.L. for
examination. Even blood was not found from the place of
occurrence. Learned counsels, therefore, urged that though the
prosecution has failed to prove the case against the
appellant/accused beyond reasonable doubt, the Trial Court has
passed the impugned order and, therefore, the present appeal be
allowed by quashing and setting aside the impugned order passed
by the Trial Court.
10. On the other hand, learned A.P.P. submits that there
are three eye-witnesses to the occurrence in question i.e. PW-1,
PW-3 & PW-5. The presence of the said witnesses at the place of
occurrence was natural. It is also contended that even the medical
evidence supports the case of the eye-witnesses and, therefore,
merely because the blood-stained clothes of the deceased were not
seized nor the brick was recovered from the place of occurrence,
benefit of the same may not be given to the accused/appellant. It is
further submitted that fardbeyan was given by the informant
immediately i.e. within two hours from the time of occurrence and
merely because Police Inspector Ugra Nath Jha was not examined
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by the prosecution, benefit of same may not be given to the
appellant/accused and the same is not fatal to the case of the
prosecution, more particularly, when the prosecution had
examined the Investigating Officer who has immediately taken
over the investigation after registration of the F.I.R. at 12:30 a.m.
during night hours. Learned A.P.P., therefore, urged that when the
Trial Court has not committed any error while passing the
impugned order, this Court may not entertain the present appeal.
11. Having heard the learned counsels appearing for the
parties and having gone through the material placed on record, it
would emerge that immediately the fardbeyan of the informant,
PW-5, was recorded at 10:30 p.m. at P.H.C. Maharaj Ganj.
Informant is the father-in-law of the deceased. It is the case of the
informant in the fardbeyan that the occurrence took place at about
08:30 p.m. and when he heard that the members of the family were
crying, he reached the place where he had seen his daughter-in-
law. The accused Mukesh Mahto @ Mantu was present and when
he tried to protest one Subedar Mahto carrying lathi in his hand, he
gave blow with lathi to him on his head. Thereafter, the injured
was taken to P.H.C. Maharaj Ganj and in the said P.H.C., during
the course of the treatment, the deceased died. Thus, from the
fardbeyan it appears that it is the case of the informant that after
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hearing the crying/weeping of the family members when he
reached at the place, at that time he saw Mukesh Mahto @ Mantu
i.e. the accused. Thus, from the said F.I.R., it is revealed that the
informant is not an eye-witness to the occurrence in question. He
has not referred the name of the eye-witness who has seen the
occurrence in question while giving the fardbeyan which was
given after two hours. It is the specific case of the informant that
he also sustained injuries in the occurrence in question and the
deceased died in P.H.C. Maharaj Ganj.
12. At this stage, we would like to refer the deposition
given by PW-1 Kiran Devi, who has stated in her examination-in
chief that at the time of incident, she was at her father's place and
was unmarried. The said incident occurred at 08:30 hrs. in the
night. Her mother went to wash her hands after dinner at the hand
pump. She went after her mother where she saw that Mukesh
Mahto hit her mother with a brick. Her mother fell down and died.
The witness was not hit by anybody. She along with other people
took her mother to Maharaj Ganj for treatment where her mother
died. Her father, namely Rangila Mahto, was hit by Sukhlal after
which he fell down. He was also treated at Maharaj Ganj and
Siwan Hospital. She has also stated that the villagers also saw the
said incident.
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12.1. In her cross-examination, she has stated that the
area beside hand pump was slippery and filled with moss. She was
married in 2015. She has stated that at the time of incident she was
aged about 18 years. Police had not recorded her statement. She
has also stated that she didn't go at the place of occurrence after
the incident, rather she was present at the place of occurrence from
before because the hand pump was situated in her house. She took
her mother for treatment at Maharaj Ganj with a Marshal Car
which was owned by Dinesh Yadav and the number of which she
does not know. She along with mukhiya Sunil Rai, panditji Suresh
Rai, Rangeela Mahto and Ranjan Kumar took her mother to the
Hospital. Her father and mother both were treated at Maharaj Ganj
Hospital. Her father was treated for about 10-15 minutes while her
mother was referred to Siwan Hospital. She came along with her
mother to Maharaj Ganj in a car and in the same car, took her
mother to Sadar Hospital, Siwan. She has also stated that she
didn't go to Siwan but sent her mother there. However, she cannot
say anything regarding the treatment.
13. PW-2, namely Manman Mahto, is the witness who
has turned hostile.
14. PW-3, namely Ranjan Kumar, is the son of the
deceased. In his examination-in-chief, he has stated that on the
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date of occurrence, he was at bathan. On hearing his sister's cry,
he along with his father went to the place of occurrence and saw
that his mother was hit by Mukesh Kumar with a brick. He along
with his father tried to stop him but the accused Mukesh Kumar
warned him to go away or else they will be killed. After that,
Subedar Mahto came with a lathi and hit his father from back
which injured him. His mother Lal Munni Devi was lying there in
an unconscious state. He, with the help of his fellow villagers, took
his mother to Maharaj Ganj Hospital where the Doctor referred her
to Siwan as there was huge blood loss. On the way to Siwan, his
mother died. His father was treated at Maharaj Ganj Hospital. The
statement of Rangila Mahto was recorded at Maharaj Ganj
Hospital.
14.1. In his cross examination, he has stated that when
he went to rescue his mother, only he and his sister were present.
From Takkipur, he along with some villagers took his mother for
treatment in a Bolero. The car was owned by Dinesh Rai, the
number of which he does not know. The driver of the car was
Dinesh Rai. He has also stated that he was not aware about the
time when he reached to the Siwan Hospital. On the way to
Hospital, he found out that his mother has died. On reaching Sadar
Hospital, Siwan, Doctor told him that his mother has died and post
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mortem was to be done. He has also stated that on hearing his
sister's cry, he along with his father reached at the place of
occurrence within 30 seconds. There was an ongoing land dispute
between the two parties. Further, he has stated that the clothe
which his mother was wearing at the time of occurrence was
smeared with blood and the blood was also spilled on the ground.
The blood-stained clothe was shown to daroga but he did not take
it with him. The blood-stained clothe of his mother was cremated
along with her body. It is also stated that the Doctor at Maharaj
Ganj Hospital did not prepare any written report regarding the
transfer of his mother to Siwan, rather he gave the instruction
orally.
15. PW-4, namely Virendra Mahto, is the husband of the
deceased. In his examination-in-chief, he has stated that there was
only one place where his wife was hit on her forehead. The brick
which was used to hit his wife was left there. The brick was
smeared all over with blood. There were brick dust on the forehead
of his wife where she was hit.
15.1 In his cross-examination, he has stated that his wife
was hit on the right side of the forehead as also above the right
eye. He saw brick smeared with blood as also blood on the soil at
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the place of occurrence. He has no idea whether the Police took
the said brick and the blood-stained soil with them or not.
16. PW-5 Rangila Mahto is a witness, who ran to the
place of occurrence when he heard the cry of his grand daughter.
When he reached at the place of occurrence, he found that Mukesh
Mahto hit his daughter-in-law Lal Munni Devi with a brick. When
he went to rescue her, he was hit by Subedar Mahto with a lathi.
His daughter-in-law fell there unconscious. He along with his
daughter-in-law and maternal grandson were taken to Maharaj
Ganj Hospital for treatment. After treating his daughter-in-law, the
Doctor referred her to Sadar Hospital, Siwan. On the way to
Siwan, his daughter-in-law died. He was treated at Maharaj Ganj
Hospital where the Police came and recorded his statement.
16.1. In his cross-examination, he has stated that he
came at the place of occurrence within 1-2 minutes. When he
reached at the place of occurrence, he saw his grand daughter
Kiran Kumari, grand son Ranjan Kumar, Mukesh Kumar and
Subedar Mahto. Before his arrival at the place of occurrence,
Subedar Mahto, aged about 50-55 years, had already reached there
with a lathi in his hand. He was treated at Maharaj Ganj Hospital
but he does not know the name of the Doctor who had treated him.
Further, he has stated that he was interrogated by Police, at
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Hospital and also at his doorstep. While his statement was being
recorded at Maharaj Ganj Hospital, the dead body of his daughter-
in-law was lying in the car. He was in the Hospital for about 3-4
hours. After that, he was referred to Siwan. He went to Siwan
along with his daughter-in-law, Ranjan Mahto, Manman and the
driver. The driver as well as the owner of the car was Dinesh Rai.
He cannot state the number of the car. When he was at Maharaj
Ganj Hospital, his daughter-in-law was alive and her breathing
was slow-paced. Doctor called Daroga in the said Hospital. He
says that he was treated at Sadar Hospital and was taken from
Maharaj Ganj Hospital to Siwan Sadar Hospital. On reaching
Siwan, the Doctor declared his daughter-in-law dead and sent the
dead body for post mortem. He saw the blood being spilled at the
place of occurrence. The Police did not take the blood-spilled soil
with them. The Police also did not take the clothe smeared with
blood which was worn by his daughter-in-law. The said clothe was
cremated along with the dead body. Further, it is stated that the
night of occurrence was a moonlit night. He has visibility in only
one of his eyes. It is also said that the brick which was used to hit
his daughter-in-law was a complete brick.
17. PW-6, namely Dr. Ravi Ranjan, is the Doctor who
was posted at Siwan as a Medical Officer. The medical board
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conducted the post mortem of the dead body of Lal Munni Devi.
He was one of the members of that board and other members of
the board were Dr. Sunil Kumar Ranjan & Dr. Anil Kumar. The
medical board found following ante mortem injuries:-
"External Examination:- Eyes and mouth partially
opened. Blood and clots on nose, mouth and both ears. Diffused
bruise around both eyes (periorbital bruise). A lacerated wound of
size 1" long (cartilage deep) on right external ear. Diffused
swelling of right side of face. A lacerated wound of size 1"x1/2"x
bone deep on anterior parietal area of scalp on the right side. A
lacerated wound of size 2"x1/3"x bone deep on posterior parietal
area of scalp on right side.
Dissection- A linear fracture of size 21/2" x 1/6" of
right temporal and parietal bones of the skull. Sub-scalp
hematoma of size 31/2" x 21/2" found on right temporal parietal
area of scalp. Cranial cavity filled with blood and clots (subdural
hemorrhage) and epidural hemorrhage. Soft tissues straightness
of neck, hyoid, thyroid and trachea found intact. Both lungs found
intact. Left and right chambers of heart found empty. Stomach
contained- semi-digested food material. Other viscera including
liver, kidneys, intestine's and spleen found intact. Uterus found
none gravid and intact. Urinary bladder found empty.
Cause of death- Shock and haemhorrage due to
above mentioned ante mortem injuries caused by hard and blunt
substance. The time since death to post mortem examination- 6
to 24 hours. Rigor mortis present."
18. PW-7, namely Samarth Kumar, is the Sub-Inspector
who was posted at Maharaj Ganj Thana at 04.08.2014. He took
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over the charge of investigation of this case on 05.08.2014 at about
12:30 in the night. He recorded the statement of the daughter of
the deceased i.e. Kiran Kumari. He did inspection of the place of
occurrence and he recorded the statement of the witnesses present
there. In his examination-in-chief, he has stated that, on hearing
the cry of the grand daughter of the informant, the informant went
to the place of occurrence where he was hit. He also recorded the
statement of Musika Devi, Gyanti Devi, Manman Mahto, Ranjan
Kumar, Virendra Mahto on different dates. He also recorded the
statements of the eye-witnesses. The statement of Rangila Mahto
was recorded before Ugra Nath Jha. Two police officers, namely
Ugra Nath Jha and Rajni Kant went along with him at the place of
occurrence at about 04:00 in the morning. F.I.R. was not marked
by him. A hand pump was present at the scene. Due to water
spilling, blood could not be collected. Apart from this, there was
nothing else there. Blood smeared brick was not found there. The
clothes of the deceased were not seized because the deceased was
not present there with him. He didn't even go to the Hospital.
19. Thus, from the aforesaid evidence, it is revealed that
PW-2, who is an independent witness and who has signed the
Inquest Report, has not supported the case of the prosecution. PW-
4, who is the husband of the deceased, is, admittedly, not an eye-
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witness to the occurrence and he got the information after the
occurrence took place. Therefore, the case of the prosecution rests
on the depositions given by PW-1, PW-3 & PW-5. From the
aforesaid deposition of the so-called eye-witnesses, it is revealed
that there are major contradictions and improvement in the
deposition of the said witnesses. PW-5 (Informant) has stated
before the Court that he had actually seen the occurrence in
question and when he tried to intervene, one Subedar Mahto gave
blow with lathi on his head. During examination-in-chief, the said
witness has also stated that the Doctor who had given the
treatment at P.H.C. Maharaj Ganj referred the injured i.e. his
daughter-in-law to Sadar Hospital, Siwan for further treatment and
when she was taken to the hospital at Siwan, she died on the way.
During cross-examination, he has admitted that after hearing the
cry, he went to the place of occurrence after 1-2 minutes. The said
witness has further stated that though he had taken the treatment in
Maharaj Ganj Hospital, he was not in a position to give the name
of the Doctor who has given the treatment to him. He has further
admitted during cross-examination that he remained in Maharaj
Ganj Hospital for about 3-4 hours and thereafter they were referred
to the Sadar Hospital, Siwan. He has specifically admitted that
when they were in the Maharaj Ganj Hospital, his daughter-in-law
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was alive. He has also stated that he found blood-stains at the
place of occurrence. However, Police did not collect the blood-
stained soil from the place of occurrence. He has also specifically
stated that blood-stained clothes of his daughter-in-law were also
not seized by the Police and it was cremated along with the dead
body. Similarly, PW-1 has stated that her statement was not
recorded by the Police. The said witness has further admitted
during cross-examination that treatment was given to her mother
and grandfather at Maharaj Ganj Hospital. The treatment was
given for 10-15 minutes and thereafter, her mother was referred to
Sadar Hospital, Siwan. She has further stated that number of
villagers have seen the occurrence in question. However, she was
not in a position to give the names of the villagers. It is also
revealed from the deposition of another so-called eye-witness PW-
3 that his mother was taken from Maharaj Ganj Hospital to Siwan
and, on the way, she died. The said witness has further admitted in
Para-17 that he along with his grandfather reached at the place of
occurrence after 30 seconds. The said witness also admitted that
blood-stains were present at the place of occurrence and the blood-
stained clothes of the deceased were shown to Daroga. However,
he did not seize the same. Daroga has also not collected the blood-
stained soil from the place of occurrence.
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20. From the aforesaid deposition of the so-called eye-
witnesses, it is revealed that the story put forward by the informant
in fardbeyan, which was immediately lodged within a period of
two hours, is not supported by the depositions of the witnesses. As
observed hereinabove, there are major contradictions and
improvement in the depositions of the witnesses. It is a specific
case of the informant that his daughter-in-law died at P.H.C.
Maharaj Ganj whereas during the course of trial, the witness has
stated that she died on the way when she was taken to Sadar
Hospital, Siwan.
21. It is further relevant to note that even PW-3 was
minor at the time of occurrence and at the time when he had given
deposition before the Court, he was aged about 16-17 years. The
learned Judge has not recorded his satisfaction whether the said
witness was in a position to understand the question put to him or
not.
22. It is pertinent to note that though the fardbeyan was
recorded by Police Inspector Ugra Nath Jha, the said witness was
not produced by the prosecution. In the facts of the present case,
we are of the view that the said witness was a material witness.
Merely because the Investigating Officer was examined by the
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prosecution, it cannot be said that from his deposition the
prosecution has proved the contents of the F.I.R.
23. It is also not in dispute that PW-7 Samarth Kumar,
who has carried out the investigation, has not collected any blood-
stained soil from the place of occurrence nor the blood-stained
clothes of the deceased were seized by the Investigating Agency.
The brick was also not found from the place of occurrence.
Though it is a specific case of the informant that he also sustained
injuries when he had tried to intervene and one Subedar Mahto
blow with lathi on his head, the prosecution has failed to produce
any document or material before the Trial Court with regard to the
treatment taken by the said witness. Doctor who had given the
treatment to the informant was not examined nor any medical
certificate/injury certificate was produced before the Trial Court.
24. Looking to the aforesaid facts and circumstances of
the present case, we are of the view that PW-1, PW-3 & PW-5,
who are near relatives of the deceased and who are projected as
eye-witnesses, are not trustworthy witnesses. There are major
contradictions in the depositions of the said witnesses and the story
put forward by the prosecution with regard to the death of the
deceased. Thus, though the prosecution has failed to prove the case
against the appellant/accused beyond reasonable doubt, the Trial
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Court has passed the impugned order. Thus, looking to the facts
and circumstances of the present case, we are of the view that the
Trial Court has committed a grave error while passing the
impugned judgment and order and, therefore, the same is required
to be quashed and set aside.
25. The impugned judgment of conviction dated
01.12.2016
and order of sentence dated 08.12.2016 passed by
learned Vth Additional Sessions Judge, Siwan in Sessions Case No.
136 of 2015, arising out of Maharaj Ganj P.S. Case No. 224 of
2014 dated 05.08.2014 is quashed and set aside. The appellant
namely, Mukesh Mahto @ Mantu, is acquitted of the charges
levelled against him by the learned Trial Court. He is directed to
be released forthwith, if not required in any other case.
26. Accordingly, this appeal is allowed.
(Vipul M. Pancholi, J)
(Rudra Prakash Mishra, J)
Sachin/-
AFR/NAFR
CAV DATE N.A.
Uploading Date 07.02.2024
Transmission Date 07.02.2024
