Jharkhand High Court
Awdhesh Mahto Son Of Late Sukar Mahto vs The State Of Bihar (Now Jharkhand) on 1 July, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:17454-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No.187 of 1996 (R)
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1. Awdhesh Mahto son of Late Sukar Mahto
2. Khewan Gope son of Sri Nandlal Gope
Both residents of village Khanodih,
P.S. Baghmara, District Dhanbad. ----- Appellants
Versus
The State of Bihar (now Jharkhand) ----- Respondent
------
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. P.S. Dayal, Advocate
For the State : Mrs. Vandana Bharti, A.P.P.
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CAV JUDGMENT
Dated: 1st July 2025
R.Mukhopadhyay,J. Heard Mr. P. S. Dayal learned counsel for the
appellants and Mrs. Vandana Bharti, learned A.P.P.
2. This appeal is directed against the judgment and
order of conviction and sentence dated 20.09.1996 (sentence
passed on 25.09.1996) passed by Sri Ram Nath Ram Mahto,
learned 1st Additional Sessions Judge, Dhanbad in S.T. No. 205
of 1983 whereby and where under the appellants have been
convicted for the offences under Sections 302/149 and 307/149
I.P.C and have been sentenced to rigorous imprisonment for life.
The appellant no. 2 has additionally been convicted under
Section 148 I.P.C and has been sentenced to rigorous
imprisonment for 2 years, while the appellant nos. 1, 3 and 4
have been further convicted under Section 147 I.P.C and have
been sentenced to imprisonment for 1 year. All the sentences
were directed to run concurrently.
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3. During the pendency of this appeal, the appellant
nos. 1 and 3 had died and therefore this appeal stood abated
against the appellant no.1 (Jagdish Mahto) and appellant no. 3
(Sardhu Mahto) vide order dated 01.07.2024.
4. The prosecution case arises out of the Fardbayan of
Arjun Prasad Pandey, recorded on 28.05.1979 in which it has
been stated that on 27.05.1979 at 6.00 p.m., Baijnath Mahto
had come to the place of Jugal Kishore Pandey for some work
and at 7.00 p.m. when his work was finished, Baijnath Mahto
had asked the informant to accompany him to his village. The
informant and Baijnath Mahto thereafter left for the village of
Baijnath Mahto and at 7.15 pm when they reached the
unmetalled road at Tola Ujariyadih, 20-25 persons variously
armed had come out from the bushes and surrounded them. It
has been stated that Pati Mahto, Jagdish Mahto, Awdhesh
Mahto and others started abusing and instigating the rest
persons to commit assault. Pati Mahto had an axe, Awdhesh
Mahto had a Bhakua and the rest accused persons had Lathis.
Pati Mahto had assaulted Baijnath Mahto with an axe on his
head and Awdhesh Mahto also assaulted him on his head with
a Bhakua as a result of which Baijnath Mahto fell down on the
ground after which the rest accused persons assaulted him.
When the informant tried to save Baijnath Mahto, he was also
assaulted by the accused persons. The informant thereafter fled
away from the place of occurrence and rushed towards the
house of Baijnath Mahto and disclosed about the incident and
thereafter he fell down. When the villagers had assembled, the
accused persons fled away. The reason for the occurrence is that
Baijnath Mahto was preventing the villagers from constructing
a school as he was himself constructing his own house in the
said land.
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Based on the aforesaid allegations, Baghmara P.S.
Case No. 26 of 1979 was instituted. 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. 205 of 1983. Charge was
framed against the accused under Sections 302/149, 307/149,
147 and 148 I.P.C which was read over and explained to them
in Hindi to which they pleaded not guilty and claimed to be tried.
5. The prosecution has examined as many as 9
witnesses in support of its case.
6. P.W.1 Arjun Prasad Pandey is the informant who has
stated that on 27th May 1979, he was accompanying Baijnath
Mahto to Ujariyadih and at 7.00-7.15 pm when they reached
near the house of Jagdish Mahto, 15-20 persons came amongst
whom he could identify Jagdish Mahto who was armed with a
Lathi, Awdhesh Mahto who was armed with a Bhakua, Sardhu
Mahto who was armed with a Lathi and Kheman Gope. He could
not recognize the other persons. All the persons started
committing indiscriminate assault upon Baijnath Mahto as a
result of which he fell down on the ground. When he objected at
the instigation of Kheman Gope, Awdhesh Mahto assaulted him
on his head with a Bhakua and Jagdish Mahto, Sardhu Mahto
and Kheman Gope with Lathis. He fell down near the house of
Jagdish Mahto due to the assault. He had stated about the
incident to Jailal Mahto, the brother of Baijnath Mahto and
thereafter he had become unconscious. He regained
consciousness after half an hour. His Fardbayan was recorded
by the Police in which he had put his signature. He has proved
his signature upon the Fardbayan which has been marked as
Exhibit 1. Baijnath was taken to Baghmara Hospital and
thereafter to Sadar Hospital and ultimately to Ranchi where he
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died. The reason for the incident is that Baijnath was
constructing a house in his land which the villagers were
protesting as according to them the land was of the school.
In cross-examination he has deposed that when he
had reached the place of occurrence, it was 7.15 p.m. There was
light in the said place, though he had not stated about the same
before the Police. It was almost dark. After the incident he had
gone to the house of Jailal and informed him about the same.
He had named only those persons in the Fardbayan whom he
had identified in the dock. He had not mentioned any other
accused in his Fardbayan except the name of four persons. In
the Fardbayan and in his restatement he had taken the name
of only four accused persons.
7. P.W.2 Jailal Mahto has stated that he was sitting in
an alley near his house when Arjun Pandey came screaming and
disclosed that his brother has been assaulted and thrown in
front of the house of Jagdish Mahto. He had gone to the place
of occurrence where he had seen the accused persons. On the
orders of Patilal Mahto he was assaulted on his chest with an
axe by Jagdish Mahto. He had seen his brother lying in an
unconscious condition. He had also seen marks of assault on
the body of Arjun Pandey. He had seen axes in the hands of
Patilal, Jagdish and Shiva and the rest accused persons had
Lathis in their possession. He was constructing a house on his
land at which a proceeding under section 144 CrPC was
instituted at the behest of the accused persons since they
claimed that the land was Gairmazarua and that they were
inclined to construct a school thereupon. The accused persons
used to say that Baijnath Mahto was responsible for the wife of
Teko Mahto being caught by the Excise officials as she was
involved in manufacturing of liquor. Baijnath Mahto never
regained consciousness.
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In cross-examination he has deposed that Arjun
Pandey had come to his house and had disclosed that Jagdish
Mahto, Pati Mahto, Sohrai Mahto and Kailash Mahto had
committed the assault while the rest accused persons had
surrounded the victim. On the next day of the incident his
statement was recorded by the Police and he has stated that
Arjun Pandey had disclosed about the name of the assailants.
Arjun Pandey was in pain at Baghmara Hospital. He had given
a report which was written down by the Police.
8. P.W.3 Nageshwar Pandey has stated that on 27th May
1979 at around 7.30-8.00 pm Jailal Mahto had come and had
disclosed that his brother has been brutally assaulted. He had
thereafter gone to the place of occurrence with Jailal Mahto
where he had seen Baijnath Mahto lying in an unconscious
condition. He and Sahdeo Mahto immediately left for Baghmara
P.S after which Police came and took away Baijnath Mahto to
the Police Station. After a requisition was given he had taken
Baijnath Mahto to the Hospital. The doctor had referred
Baijnath Mahto to Dhanbad and he had accompanied Baijnath
Mahto to Dhanbad. He had thereafter left for his house. Later
on he came to know that Baijnath Mahto has died in Ranchi.
In cross-examination he has deposed that he had not
asked Jailal Mahto as to who had committed the assault. When
he had reached the place of occurrence, there were several
persons present.
9. P.W.4 Dr. Birendra Prasad Singh was posted as a
Medical Officer at Baghmara Hospital and on 28.05.1979 he had
examined Arjun Pandey and had found the following :-
(1) On scratch on the lateral side of upper portion of the
right leg ¼” x ¼” .
(2) one skin scratches on swelling on the left thigh on
the anterior portion.
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(3) One bruises with swelling on the top of the right
shoulder.
The nature of injuries were simple caused by hard
and blunt substance such as Lathi. He has proved the injury
report which has been marked as Exhibit-2.
10. P.W. 5 Shaktipada Rai has stated that on 29.05.1979
Arjun Pandey and Baijnath Pandey had come to his clinic at
9.00 pm and wanted medicine for headache. He had rubbed
Amritanjan on the head. Both the persons thereafter left and
after 55 minutes the loudspeaker in the house of Sambhu
Pandey was stopped and he heard a cry of alarm of Arjun
Pandey. Shiva, who is the nephew of Baijnath Mahto, came and
disclosed to him that Baijnath Mahto and Arjun Pandey have
received injuries at which he rushed to the place of occurrence
with a first aid box and bandage. He found Baijnath Mahto lying
on the ground in a pool of blood. Baijnath Mahto was put on a
cot and was given first aid and he had asked the persons present
to take Baijnath Mahto to the Hospital. Jailal Mahto had
disclosed about the name of the assailants but he does not
remember their names.
In cross-examination he has deposed that when he
had gone to the place of occurrence, several persons had already
assembled.
11. P.W.6 Dr. R. S. Prasad was a Professor and Head of
the Department of Forensic Medicine, RMCH and on 06.06.1979
he had conducted autopsy on the dead body of Baijnath Mahto
and had found the following:-
(i) Abrasion rail track in appearance covered with
scaps.
(ii) 2 x 1 cm on the outer side of the left arm with fracture
of the left arm bone.
(iii) Without scab & healed 3 x 2 cm completely scapular
region6
(iv) 4 x ¼ cm
(v) ½ x ¼ cm on the upper left scapular region.
(vi) Lacerated wound 2 x ½ cm on the left half of the
parietal region situated before backward with one
stitch in position.
(vii) Surgical stitched wound 6 cm long on the left
temporal region of the head situated vertically 6 to 7
cm of bone was missing under neath and there was
contusion of the brain with infection.
All the wounds were antemortem in nature caused
by hard and blunt substance like Lathi and blunt portion of the
Tangi. Death was caused due to head injuries. The post-mortem
report has been proved and marked as Exhibit-3.
12. P.W.7 Sahdeo Mahto has stated that on 27.05.1979
at about 6.00-06.30 pm on hearing a commotion he had gone
to Ujariyadih Tola where he had seen Baijnath Mahto lying
unconscious beside the house of Jagdish Mahto. Arjun Pandey
had disclosed that he was going home along with Baijnath
Mahto when on the way the accused persons had committed
assault upon them. He had thereafter taken Baijnath Mahto to
the Hospital while Mukhiyaji, Arjun Pandey and others went to
the Police Station. Baijnath Mahto was referred by Baghmara
Hospital to Sadar Hospital, Dhanbad where he was brought.
Baijnath Mahto was thereafter shifted to RMCH, Ranchi where
he was operated upon. On the second day of his returning home,
the dead body of Baijnath Mahto was brought back home.
In cross-examination he has deposed that in between
the place where Baijnath Mahto was lying injured and his house
there are 10/12 houses. He had, in his statement before the
Police, stated about the disclosure made by Arjun Pandey
regarding the assault committed by the accused persons.
13. P.W.8 Tilak Mahto has been tendered by the
prosecution.
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14. P.W.9 Basudeo Ram was posted as an Assistant Sub-
Inspector of Police in Baghmara P.S and on 27.05.1979 he had
gone to Khanudih village on the information of Constable Bharat
Singh. He had seen on the road Baijnath Mahto lying in an
unconscious condition and blood was oozing out from his head
which was in a damaged condition. Arjun Prasad Pandey was
also lying on the ground in an injured condition. He had taken
both the accused to Baghmara Hospital and since Arjun Pandey
was in a conscious state, his Fardbayan was recorded. He has
proved the Fardbayan which has been marked as Exhibit-4. He
has proved the formal F.I.R which has been marked as Exhibit-
5. He after taking over the charge of investigation had inspected
the place of occurrence which is an unmetalled road between
Ujariyadih and Baghmara. He had recorded the restatement of
the informant and the statements of other witnesses. The blood
stained earth was seized and a seizure list was prepared. He had
almost completed the investigation before he was transferred.
This witness did not appear to face the test of cross-
examination.
15. The statements of the accused were recorded under
Section 313 Cr.P.C in which they have denied their complicity
in the commission of murder of Baijnath Mahto and assault on
Arjun Prasad Pandey.
16. It has been submitted by Mr. P.S. Dayal, learned
counsel for the appellants that there are major contradictions
in the evidence of the witnesses. In the Fardbayan the informant
has named 15 accused persons who after making an unlawful
assembly had committed an assault upon Baijnath Mahto and
the informant, but in course of trial there has been a tectonic
shift in his evidence as 4 persons have been named of
committing the assault. Mr. Dayal has drawn the attention of
the Court to the 313 Cr.P.C statement while submitting that
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vague and similar questions have been put to all the accused
and such glaring error will benefit the appellants as they were
prevented from giving proper explanations. In the cross-
examination of P.W. 2 it seems that a different manner of
occurrence has been enunciated by him. P.W. 2 also seems to
have given a report to the Police but the same has been
suppressed by the prosecution. He has further submitted that
the postmortem report and the injury report run contrary to the
events projected by the prosecution. The evidence of the
investigating officer (P.W. 9) has been expunged by the learned
trial court since he had not presented himself for cross-
examination.
17. Mrs. Vandana Bharti, learned A.P.P has submitted
that P.W. 1 and P.W. 2 are the eyewitnesses to the occurrence
and their evidence cannot be discarded merely on account of
some minor contradictions. The postmortem report also reveals
the manner of assault committed by the appellants.
18. We have heard the learned counsel for the respective
sides and have also perused the trial court record.
19. The Fardbayan of the informant reveals the
engagement of 15 named accused persons who after forming an
unlawful assembly had committed a concerted assault with
various weapons in their possession upon Bajnath Mahto and
when the informant went to save him, he was also subjected to
assault. Pati Mahto is said to have initiated the assault with an
axe blow on head of Baijnath Mahto followed by the appellant
Awdhesh Mahto with a Bhakua on head. The others thereafter
had assaulted with Lathis. The informant has been examined as
P.W. 1 and in his evidence he does name Pati Mahto as the
accused and though the appellant Awdhesh Mahto is attributed
of having a Bhakua but no specific allegation has been levelled
against him which runs contrary to what has been stated in the
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Fardbayan. Moreover, the evidence of P.W. 1 curtails the named
accused persons to 4 and not 15 as mentioned in the
Fardbayan. The appellant Kheman Gope was said to be holding
a Lathi. It also appears from the evidence of P.W. 1 that it was
dark when the incident had taken place at an unmetalled road
and he had not stated before the Police of any source of light at
the said place. It was P.W. 2 who was disclosed about the
incident by P.W. 1 but P.W. 2 seems to have given a descriptive
evidence regarding the assault, though at the same time he has
accepted the fact that P.W. 1 had informed him about the
assault when the same had already taken place. In his cross-
examination P.W. 2 has stated about the name of the assailants
stated to him by P.W. 1 which includes Jagdish Mahto, Pati
Mahto, Sohrai Mahto and Kailash Mahto while the rest had
surrounded the deceased. Such disclosure does not name either
of the appellants. Moreover, the manner of occurrence seems to
have undergone a perceptible change to what had been
described by P.W.1. P.W.2 has also pointed out a glaring fact to
the effect that P.W. 1 was in pain and in the Hospital the
statement of P.W. 2 was taken down by the Police but such
report which can be construed to be the first information has,
for reasons best known to the prosecution, suppressed by it.
P.W.1 in his evidence has stated that in the Fardbayan he had
named only four persons but since the Investigating Officer
failed to turn up for cross-examination, no contradiction could
be taken from him.
20. In the context of the evidence of P.W. 1, the injury
report of P.W. 1 has been perused and it seems that he had
received simple injuries caused by hard and blunt substance
such as Lathi. The post-mortem report indicates that the
wounds upon the deceased were caused by hard and blunt
substance like Lathis and blunt portion of axe and the same
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rules out the use of a Bhakua which is a sharp-pointed weapon
and with which the appellant Awdhesh Mahto was said to have
been equipped. The injury report of P.W. 1 and the post-mortem
report of the deceased therefore rules out the usage of Bhakua
in eliminating the deceased and causing injury to P.W. 1.
21. The other aspect of the case is the statement of the
appellants recorded under section 313 CrPC. It seems that all
the accused persons, who were put on trial, have been put the
same questions in a routine fashion. In Harnam Singh versus
State (UT of Delhi) reported in (1976) 2 SCC 819 it has been
held that each material circumstance appearing in the evidence
against the accused is required to be put to him specifically,
distinctly and separately and failure to do so amounts to a
serious irregularity vitiating the trial if it is shown to have
prejudiced the accused. In the present case in all the 313 Cr.P.C
examination generalized questions have been put to all the
accused that they had committed assault with Bhakua and
Lathi obliterating the use of an axe the back portion of which
seems to have been instrumental in one of the fatal blows
received by the deceased. The oscillating nature of evidence of
P.W. 1 vis-à-vis his Fardbayan reveals an indecisiveness and
cannot at all serve as a beacon to the prosecution case; rather
the same along with the surrounding circumstances depicted
above, creates a grave doubt upon the prosecution case and the
benefit therefore would accrue to the appellants.
22. We, therefore, in view of the discussions made herein
above, set aside the judgment and order of conviction and
sentence dated 20.09.1996 (sentence passed on 25.09.1996)
passed by Sri Ram Nath Ram Mahto, learned 1st Additional
Sessions Judge, Dhanbad in S.T. No. 205 of 1983.
23. This appeal is allowed.
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24. Since the appellants are on bail, they are discharged
from the liability of their bail bonds.
25. Pending interlocutory application(s), if any, stand(s)
closed.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
Shamim/-
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