Awdhesh Mahto Vs State of Bihar

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 1^st 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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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.

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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 27^th 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.

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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.

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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.

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P.W.3 Nageshwar Pandey has stated that on 27^th 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.

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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.

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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 :-

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(1) On scratch on the lateral side of upper portion of the right leg ¼” x ¼” .

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(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.

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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.

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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.

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In cross-examination he has deposed that when he had gone to the place of occurrence, several persons had already assembled.

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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:-

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(i) Abrasion rail track in appearance covered with scaps.

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(ii) 2 x 1 cm on the outer side of the left arm with fracture of the left arm bone.

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(iii) Without scab & healed 3 x 2 cm completely scapular region

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(iv) 4 x ¼ cm

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(v) ½ x ¼ cm on the upper left scapular region.

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(vi) Lacerated wound 2 x ½ cm on the left half of the parietal region situated before backward with one stitch in position.

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(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.

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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.

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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.

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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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P.W.9 Basudeo Ram was posted as an Assistant SubInspector 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 Exhibit5. 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 crossexamination.

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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.

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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 crossexamination 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 crossexamination.

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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.

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We have heard the learned counsel for the respective sides and have also perused the trial court record.

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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 crossexamination 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.

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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.

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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.

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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 1^st Additional Sessions Judge, Dhanbad in S.T. No. 205 of 1983.

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