Kaila Mahto Vs State of Bihar And Ors.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (DB) No.258 of 1998(R)

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[ Against the judgment of conviction dated 08.09.1998 and order of sentence dated 09.09.1998 passed by the learned Addl. Sessions Judge-V, Giridih in Sessions Trial No.392 of 1995 ]

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1. Kaila Mahto son of Akal Mahto

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2. Giro Mahto Son of Akal Mahto

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3. Churka Singh son of Tuplal Singh

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4. Bodhi Mandal Son of Kamal Mandal

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5. Jageshwar Mahto

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6. Narayan Mahto son of Akal Mahto

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7. Etwari Mandal @ Ritlal Mandal son of Kamal Mandal

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8. Jodhi Mandal son of Jhupar Mandal

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Appellants are residents of village-Kattutand, P.S. Birni, DistrictGiridih and Appellant No.15 resident of village-Jamdala, P.S. Birni, District-Giridih.

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…. …. Appellants

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Versus

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The State of Bihar (Now Jharkhand)

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…. …. Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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…..

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For the Appellant s : Mr. P.K. Mukhopadhyay, Advocate Mr. S.K. Murty, Advocate For the State : Mr. Satish Prasad, A.P.P.

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C.A.V. on 17/04/2025 Pronounced on 10/06/2025

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Per Sujit Narayan Prasad, J.

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At the outset, it needs to refer herein that the appeal against

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the appellant nos.1 (Khiru Mandal), 2 (Manjhi Mahto), 3 (Ganpat Mahto), 6 (Sukhdeo Mahto), 7 (Babu Mani Singh)

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and 11 (Arjun Mahto) was abated vide order dated 30.07.2024. So far as appellant no.12 (Bahadur Mandal) is concerned, the appeal was abated vide order dated 17.04.2025.

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The instant appeal filed under Section 374 (2) of the Code of Criminal Procedure, is directed against the judgment of conviction dated 08.09.1998 and order of sentence dated 09.09.1998 passed by the learned Addl. Sessions Judge-V, Giridih in Sessions Trial No.392 of 1995, whereby and whereunder, the appellants have been convicted for the offence punishable under Sections 302/149 of the Indian Penal Code and sentenced to undergo R.I. for life for the offence under section 302 and further the appellants namely Kaila Mahto, Giro Mahto Son and Churka Singh have been convicted under Section 148 IPC and sentenced for one year for the offence under Section 148 IPC, and rest of the appellants have been convicted under Section 147 IPC and sentenced for six months. All the sentences were ordered to run concurrently.

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Prosecution case

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3. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of prosecution case, as per th e fardbeyan of P.W.5, Jehali Mian (Informant), which reads as under:

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3. (i) The prosecution case as unfolded in the fardbayan of Informant, namely, Jehali Mian (P.W.5), wherein, he has stated before the Birni Police Station alleging inter-alia that o n 29.1.1995 at 7.00 A.M. while his son Khalil Mian was going on a bicycle to bring Kerosine oil and when he reached near the house of accused Khiru Mandal, Manjhi Mahto, Ganpat Mahto, Kaila Mahto, Giro Mahto and Sukhdeo Mahto were warming themselves by fire and as soon as Khalil Mian reached there, Khiru Mandal caught his cycle and started abusing him and pushed him down from the cycle on which his son fell down and started making hulla. Khiru Mandal also called his family members on which accused Babu Mani Singh, Churka Singh, Budhan Mahto, Etwari Mandal, Jogeshwar Mahto, Arjun Mahto, Bahadur Mandal, Somar Gope, Jodho Mandal, Narayan Mahto, all reached armed with lathi, rod, Bhala, Garasha, Pasa of Kudal, hammer , Sabbal and they pulled his son inside the house and started assaulting him with hammer, lathi, sabbal and rod and Kudal on which, he, Rajak Mian, Nasima Khatoon, Teklal Mahto, Somar Mahto, Nandlal Mahto came at the place of occurrence and tried to pull Khalil Mian out of the house but the accused persons did not allow them and started assaulting them. Due to which, her daughter-in-law, Nasima Khatoon, his son, Rajak Mian became injured and Rajak Mian fled towards the Jamua P.S. and Jamua Police reached there. The accused persons thrown Khalil Mian out of the house in the injured condition who

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was immediately sent to the Sadar Hospital Giridh for treatment and while they were taking Khalil Mian to the Hospital, in the way, he died and when reached the Sadar Hospital, the Doctor declared him dead.

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3(ii) . It is further alleged that the reason behind the occurrence is that there is a dispute between Somar Mahto and Arjun Mahto with regard to lands and in that dispute, he has sided with Somar Mahto, due to which, the accused persons are having enmity against them and earlier also, the accused Babumani Singh, Kali Mahto, Jodhi Mandal had kidnapped Khalil Mian with intention to kill him but due to interference of Police, he was recovered from Kusumba which gave rise to a criminal case. Due to aforesaid enmity, the accused persons, had assaulted the deceased, Khalil Mian, by which, he died.

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4. On the basis of fardbeyan of the informant, a formal FIR being Birni P.S. Case No.07/1995 was instituted against all the accused persons under Sections 147/148/149/323/302 of the IPC and police after investigation submitted charge-sheet against the accused persons.

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5. Thereafter, the cognizance was taken and the case was exclusively triable by the court of Sessions. The case was committed to the court of Sessions for trial and disposal. After framing of charges, the accused persons pleaded not guilty and claimed to be tried.

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6. In order to prove its case, prosecution examined altogether 9 witnesses, i.e., P.W.1-Nandlal Mahto, P.W.2-Rajak Mian, P.W.3-Nasima Khatoon, P.W.4-Dr. B.P. Singh (Doctor), P.W.5Jehali Mian, P.W.6-Binesh Lal (I.O.), P.W.7-Dr. G.C. Sinha, P.W.8-Sukhdeo Choudhary and P.W.9-Teklal Mahto.

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7. The trial Court, after concluding the evidence of prosecution, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code, in which, accused persons had denied the prosecution evidence and claimed to be innocent.

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8. The learned trial court, after perusal of record found the charge levelled against the accused/appellants proved. Accordingly, the accused/appellants have been found guilty, as such, convicted and sentenced vide impugned judgment of conviction dated 08.09.1998 and order of sentence dated 09.09.1998, which is the subject matter of instant appeal.

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Arguments of the appellants

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9. Mr. P.K. Mukhopadhyay, learned counsel for the appellants has taken the following grounds by assailing the impugned judgment of conviction and order of sentence: -

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(i) The conviction of the appellants cannot be said to be proper in absence of any specific overt act alleged against the appellants.

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(ii) Learned counsel, for the appellants, has argued that the trial court has committed manifest error in not

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appreciating the fact that the most of witnesses except doctor and investigating officer who have been examined by prosecution are highly interested witnesses as they are related to each other.

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(iii) The testimony of witnesses clarifies that general and omnibus allegation of assaulting the deceased has been deposed.

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(iv) The death has been shown due to injury sustained in 7 to 9 ribs, but, it cannot be gathered after going through the testimony of the witnesses stating therein that any injury has been given in the chest by any of the appellants.

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(v) The suggestion has been given that there is possibility of fracture in the ribs due to falling from the cycle.

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(vi) The argument has been advanced that testimony of P.W.2, P.W.3, P.W.5 and P.W.9 cannot be said to be trustworthy warranting the conviction for life under Section 302 of the IPC on the basis of general and bald statement. (vii) The deceased was also man of antecedents and shown to be brother of Dacoit and stones have been found nearby his house.

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(viii) Learned counsel has submitted that in such a contradictory statement as has been taken by the witnesses in the testimony, has not been supported by the Doctor, hence, there is possibility of two views and in that

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view of the matter, the benefit of doubt, is to be given in favour of the appellants.

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10. Learned counsel for the appellants, on the aforesaid premise, has submitted that the impugned judgment of conviction/sentence suffers from patent illegality and hence, it is not sustainable in the eye of law.

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Arguments of the respondent-State

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11. Per Contra, Mr. Satish Prasad, learned A.P.P. appearing for the respondent-State has vehemently opposed the aforesaid grounds by defending the impugned judgment by taking the following grounds: -

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(I ) P.W.2, P.W.3 and P.W.5 are the injured witnesses and they have fully supported the prosecution version.

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(II) The Doctor has also supported the prosecution version by showing the cause of death occurred due to injury sustained by hard and blunt substance.

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(III) P.W.2, P.W.3 and P.W.5 had deposed that the appellants were armed with lathi , sabbal and farsa .

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(IV) It has been submitted that if the nature of injury will be seen, as has been recorded by the Doctor while conducting the postmortem, it would be evident that the complicity of these appellants cannot be disputed.

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12. Learned A.P.P. for the State, based upon the aforesaid grounds, has submitted that it is therefore a case where the

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impugned judgment of conviction/sentence requires no interference.

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Analysis

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13. We have heard the learned counsel for the parties, considered the finding recorded by the learned trial court in the impugned judgment, gone across the testimony of the prosecution witnesses as well as the other documents available in the lower court records.

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14. Now, the question which falls for determination before this

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Court is:

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“as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts and whether the impugned judgment is sustainable in eye of law or on facts?”

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15. This Court, before going into the legality and propriety of the impugned judgment of conviction/sentence, deems it fit and proper to refer the testimonies of prosecution witnesses.

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16. P.W.1 , namely, Nandlal Mahto, has been declared hostile and P.W.8, namely, Sukhdeo Choudhary was the tendered witness.

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17. P.W.2 , namely, Rajak Mian who is one of the injured in this case and brother of the deceased, has stated that at 7:00 a.m. on 21.09.1995, he was going with bullock-cart and heard hulla and came near the house of Khiru Mandal where he saw that the accused have assaulted Khalil Mian and broken his leg and hand and blood was coming.

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18. He has named all the accused persons and specifically deposed that Khiru Mandal had Farsa in his hand, Manjhi Mahto had Pasa of Kudal (spades) in his hand. Kati Mahto had sabbal in his hand, Giro Mahto had rod in his hand, Babulam Mandal was armed with Sabbal.

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19. Churka Singh was armed with Barchha, Arjun Mahto was armed with lathi, Narayan Mahto was armed with Kudal, Jogeshwar Mahto armed with Sabbal, Jodhi was armed with Kudal and all the accused persons have assaulted Khalil Mian by their arms and when they went to save Khalil Mian, he was also assaulted by Bodhi Mandal by lathi. He was further stated that he was assaulted by Manjhi Mandal by Pasa of Kudal, and, Kaila Mahto assaulted him by Sabbal on back and thereafter, he fled away from there and rushed to Jamua P.S. and thereafter police came and the accused persons fled away. The police asked to take Khalil Mian immediately to the hospital on which along with his father and wife took Khalil Mian to the hospital but on the way Pachamba Khalil Mian to the hospital but on the way at Pachamaba, Khalil Mian died and in the hospital the doctor declared him dead and treated them at the hospital. He has also stated that there was dispute between Somar Mahto and Manjhi Mahto and his father told that he will decide the matter.

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20. In para-4, he has deposed that his brother was earlier kidnapped by Manjhi and three other persons but the police apprehended them immediately and three other persons but the

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police apprehended them immediately. In his cross-examination, he has admitted that he was arrested by the Jamua Police and a DBBL gun was recovered from his house and only 20 days prior he was released on bail. He has also admitted that once he was gone in jail in forest case also and once he was implicated in a theft case. In para 6, he has also admitted that whenever a case was lodged against him, it was lodged against the deceased Khalil also. In Para-9 of his evidence, he has stated that in this case accused Babumani and Chirka Singh belongs to one house, Bodhi Mandal, Etwari Mandal, Bahadur Mandal, Khiru Mandal belong to second house and Giro Mahto, Sukhdeo Mahto, Kaila Mahto belong to 3^rd house and Manjhi Mahto, Ganpati Mahto of house and Jogeshwar Mahto, Arjun Mahto and Narayan Mahto 5^th house and Somar Gope belong to another family and Jodhi Mahto belong to another family. His attention has also been drawn towards the statement made before the police during the course of investigating of the case. In para 16 of his evidence, he has stated that just in front of the house of the Khiru Mandal, he has his Bari.

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21. In Para-17 of his evidence, he has deposed again that as to when he reached there, Marpit was going on and he saw Khalil drenched with blood.

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22. P.W.-3, namely, Nasima Khatoon was also one of the injured and she has also supported the factum of occurrence, He has further deposed that all the accused persons have pulled

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Khalik inside the house and all the accused persons were armed and she has specifically mentioned the armed which the accused persons were carrying. In Para No. 1, she has further stated that the petitioner Khalil made hulla and on which her father-in-law and husband came to the place of occurrence and saw the accused assaulting on the deceased and when she tried to save him, she was also assaulted and her father-in-law and husband were also assaulted. She has further stated that Khiru Mandal assaulted her and Kaila Mahto pulled her down by catching her hairs. Thereafter, her husband went to the police station and the police came and they had taken Khalik to the hospital but in the way he died and in hospital, she was treated. She has also stated in Para-9 of her evidence in cross-examination that just adjacent to the house of Khiru, she has land and well.

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23. P.W.-4 Dr. B.P. Singh has conducted the post-mortem examination on the dead body of the deceased and found the following ante-mortem injuries on the person of Khalil Mian:-

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1. Lacerated wound in front of right leg 1”x ½ ” bone deep associated with communition of tibia,

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2. Lacerated wound on right forearm 2 ½ “ x ¼ “ bone deep amalgamed with fracture of radius bone;

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3. Lacerated wound on left forearm 1” x ¼ “ x skin deep;

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4. Swelling on left forearm near waist associated with fracture of radius and alna;

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5. Bruise with swelling in back five in number of varying size 2 ¼

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“ x 4” x ¼ “ x ¾ “.

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6. Scratches three in number on chest left side front near sternum 2” x 2 1/2” x ¼ “ x 1“;

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7. Lacerated wound on left ankle 1” x ¼ “ x skin deep.

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24. On dissection under surface of chest wall left side, he found ecchymosed, 7^th to 9^th rib, left side chest fracture, left lung contused, heart contained blood left side and right side empty, chest cavity contained blood and clot . Stomach contained undigested food-stuffs like mutton, mucos membrane normal. The doctor has further found that all the injuries mentioned above are external and caused by hard and blunt substance and in his opinion, cause of death was due to shock and hemorrhage as a result of above injuries (mentioned hemorrhage as a result of above injuries (mentioned death due to inadvertence). He has further opined that chest injury was sufficient to cause death in ordinary course of nature and time elapsed since death to postmortem examination about six hours.

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25. PW-5 Jehali Mian , the informant of the case and he has also stated that his son was going to bring kerosene oil and as soon as he reached on the door of Khiru Mandal, Manjhi Mahto, Bodhi Mandal, Khiru Mandal, Churka Singh were warming themselves with fire and Khiru Mandal caught his cycle and Manjhi and Churka and Bodhi also caught him and pulled him inside the house and till he reached there, Manjhi Mahto

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assaulted him by pasa of spade (kudal) on left leg and on hulla of Khiru Mandal rest of the accused persons came variously armed and started assaulting his son and when he tried to save him Khiru assaulted him by Farsa on right hand and Nasima Khatoon was also assaulted by Khiru Mandal by Bet (handle) portion of Farsa on leg and waist and Rajak Mian was also assaulted by Manjhi Mahto by Pasa of Kudal on Clavicle and thereafter Rajak Mian went towards Jamua P.S. but by that time, the accused persons thrown Khalik Mian in the lane after assaulting him. Thereafter, the police came and on the advice of police, they had taken Khalil Mian to the hospital but hear pachamba, he died and at Giridih hospital, he, his son Rajak Mian and Nasima Khatoon were treated and in the hospital, the police came and recorded his statement on which he put his LTI and has also stated that on the same day at 7 to 8 in the night, he returned to the village where Birni police also came there and recorded the statement. He has further stated in Para-9 that he could not saw as to why accused persons assaulted his son. In para- 11 of this evidence, he has stated that his house is in the northern side of the house of Khiru Mandal and he has further stated that in his house and the house of Khiru Mandal there is Bari on both sides. He has denied that his son Khalil was accused in any criminal case but once he had gone to jail in a coal case and he has further stated that his son Rajak Mian was also an accused in a case of recovery of gun.

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26. PW-6, Binesh Lal, who is the Investigating Officer of the case, has deposed that on 29.01.1995, the statement of Jehali Mian was recorded by the ASI B.L. Ram at Sadar Hospital, Giridih on the basis of which Birni police has recorded the formal FIR and investigation was handed over to him. In para-4 he has given description of the place of occurrence as the village road in front of the house of Khiru Mandal. He has further stated that he found the Angan freshly smeared with cow-dung and in east of the P.O., there is road and Bari of Khalil Mian, west-house of Kali Singh, and well, north- at about 20/200 yards then house of the deceased and his land, south parti land. He has also stated that after investigation, he has submitted chargesheet.

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27. In his cross-examination, he has deposed that from Jamua police station, a Choukidar came to the Birni P.S., In Para-8, he has stated that about 11.40 in the night, he had inspected the place of occurrence. In Para-11 of his evidence, he has stated that he recovered lathi, rod, farsa from the house of Khiru Mandal and prepared seizure list of that. Thereafter, his attention has been drawn towards the statement made by the different witnesses before him and towards the statement made in the fardbeyan.

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28. PW-7 Dr. G.C. Sinha, who is the doctor, has examined Rajak Mian, Nasima Khatoon and Jehali Mian and he has stated that at 12.40 PM on 29.01.1995, he has examined Jehali Mian and found one lacerated wound 3” x ½ “ x muscle deep of first

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web of right hand and the injury was simple in nature. He found the injury simple caused within six hours by hard and blunt substance may be lathi and sabbal.

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29. He has also deposed that he examined Rajak Mian at 12.45 P.M. and found two bruises on scapula region. Injury were simple in nature caused by hard and blunt substance may be by lathi or sabbal and the age of the injuries were within six hours.

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30. He has also examined Nasima Khatoon at 12.50 PM and found one swelling with pain 3 ½ 2 x 3 ½ 2 x on the lateral aspect of mid region of left leg and swelling with pain 1 ½ x 1 ½ on the mid region of right leg and opinion was reserved about the aforesaid injuries and injuries may be caused by hard and blunt substance.

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31. In his cross-examination, he has deposed that the A.S.I. of Giridih (T) P.S. has referred all the injured for treatment and he does not know x-ray as suggested to Nasima Khatoon was taken or not. He has further deposed that all the aforesaid injuries may be on fall on the blunt and hard substance.

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32. PW-9 Teklal Mahto claims himself as an eye-witness and has deposed that while he was going to sale coal, he heard hulla and when he returned back, he saw a Marpit taking place in the Angan of Khiru Mandal and saw Khiru Mandal, Manjhi Mahto, Churka Singh, Babumani Singh, Bodhi Mandal, Kaila Mahto Giro Mahto and Sukhdeo Mahto and they were assaulting.

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33. In his cross-examination, he has stated that Rajak Mian was also with him and on hulla both of them returned and saw the assault on Khalik Mian. He has further stated that assault was not taken place in the Gali rather in the Angan (court yard).

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34. It also needs to refer herein that three witnesses have been examined on behalf of the defence.

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35. D.W-1 Hulash Mandal has proved the formal FIR and fardbeyan of Birni P.S. Case No. 2/95 as Ext A and B and also proved the FIR of Birni P.S. Case No. 55/97 and its fardbeyan as Ex. A/1 and B/1.

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36. D.W. 2 Prayag Yadav has proved formal FIR of Birni P.S. case No. 104/94 as Ext. A/2 and fardbayan of the aforesaid case as Ext. B/2 and also proved endorsement on the fardbayan in that case as Ext. C.

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37. D.W.-3, Jugal Kishore Pandit has proved formal FIR of Binni P.S. Case No. 13/92 and written report as Ext. A/3 and D and also proved endorsement on written report as Ext. C/1.

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38. At this juncture it would be apt to reiterate the contention of parties . Learned counsel, for the appellants, has argued that the trial court has committed manifest error in not appreciating the fact that the most of witnesses except doctor and investigating officer who have been examined by prosecution are highly interested witnesses as they are related to each other. It is argued that the statement of witnesses shows that the appellants did not have any intention to commit murder of the deceased. It

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is argued that attention has been drawn of P.Ws. with respect to the contradiction in the deposition of the witnesses vis-a-vis their statement as recorded under Section 161 Cr. P.C. and there are material contradictions in their testimony and hence, their testimony cannot be relied upon. It is argued that even if for arguments sake the prosecution story is found to be true then also it would be evident that there is material improvements in the testimony of the prosecution witnesses vis-a-vis the statement made under Section 161 Cr.P.C. Learned counsel has submitted that the findings of P.W. 4, the doctor who conducted the post-mortem over the dead body has not corroborated the ocular testimony regarding the injuries sustained by the deceased.

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39. Learned counsel further submitted that in view of the material contradictions in the testimony of the witnesses, it is evident that the prosecution has not been able to bring home the charges against the appellant beyond all reasonable doubt therefore, the appellants are entitled to the benefit of doubt. On the aforesaid ground it is emphatically contended that the impugned judgment is not sustainable in law or on facts and deserves to be set aside.

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40. Per contra, learned APP has contended that just because the some of the witnesses are agnates or related to each other their evidence or testimony cannot be categorized as that of interested witnesses. It is argued that they are natural witness

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and their presence at the place of occurrence is corroborated by the injury report and the discrepancies pointed out by the learned counsel for the appellants are not material and such discrepancies does not strike at the creditworthiness of their testimony. It is argued that the trial court has considered and elaborately discussed the material evidence in its correct perspective. That the judgment of conviction’ and order of sentence is based on the evidence marshalled out during the trial and it does not require any interference by this Court.

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41. We have considered the rival contentions and perused the testimony of the witnesses. It is noticed that the witnesses examined by the prosecution particularly P.W.5 informant have stated in testimony that they have no idea about the motive behind the occurrence. However, informant had stated in the ferdbeyan that there was land dispute between the Somar and Manjhi Mahto and since the informant had supported the Somar , the alleged occurrence was caused by the appellants.

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42. It has been admitted that the members of the prosecution parties had sustained injuries and P.W. 7 the doctor, had found injuries on their person i.e. P.W.5, P.W.2 and P.W.3. The injury reports are marked as Exts.4, 4/1 and 4/2 respectively, P.W. 7 had opined that the injuries were caused by hard and blunt substance.

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43. At this juncture it would be fruitful to consider the principles governing constructive liability under Section 149 I.P.C. This

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section requires the consensus of five or more persons to do an unlawful act prohibited by Section 141 I.P.C. In order to create a liability under this section there must be proof that the accused knew that the offence committed by the member of the assembly was likely to be committed by any of them. Section 149 does not create new offence but deals with vicarious liability of the members of unlawful assembly.

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44. In Jamail Singh v. State of Punjab; AIR 1982 SC 70 , the Hon’ble Apex Court held that since there was no pre-concert between the accused persons nor a meeting of minds between them before the offence took place, the conviction of the accused under Section 302/34 I PC was bad and since the accused merely gave a token blow on the ear and caused simple injuries, the conviction was altered to one under Section 324 IPC.

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45. At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. Thus, considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that the question that still remains to be answered is whether it is possible to arrive at the conclusion as to what injury was caused by which accused.

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46. As noticed no reliable evidence has been broughtforth on the record as to what exactly transpired at the time of incident

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and what was the motive to cause such incident. In the first paragraph of the ferdbeyan it is alleged that accused persons with their arms had assaulted the deceased. It is vividly clear from the said narration that there is general and omnibus allegation against all the accused persons and in the concluding, paragraph of the ferdbeyan it is alleged that accused persons namely, Khiru Mandal also called his family members on which accused Babu Mani Singh, Churka Singh, Budhan Mahto, Etwari Mandal, Jogeshwar Mahto, Arjun Mahto, Bahadur Mandal, Somar Gope, Jodho Mandal, Narayan Mahto, all reached armed with lathi, rod, Bhala, Garasha, Pasa of Kudal, hammer , Sabbal and they pulled his son inside the house and started assaulting him with hammer, lathi, sabbal and rod and Kudal. 47. It is noticed that P.W. 5 in the ferdbeyan and in his testimony before the court has deposed that accused/appellants were armed with Bhala, Garasha, Pasa of Kudal, hammer , Sabbal , lathi and Farsa and they assaulted the deceased with their arms but this fact has not been corroborated by the postmortem report (Ext.-1), as no incised wound injury on the body of the deceased was found.

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48. It is important to mention here that this witness has nowhere stated that particular accused/appellant gave the fatal blow to the deceased. On analysis of the testimony, it is apparent that there is improvement in the examination-in-chief of the witnesses vis- a-vis the narration in the ferdbeyan as on point

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of motive, it has been stated since they were in support of the Somar Mahto therefore appellant assaulted his son but in examination -in-chief he has stated that he has no idea about the motive behind the alleged occurrence.

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49. P.W.2 , namely, Rajak Mian who is one of the injured in this case and brother of the deceased, has stated that at 7:00 a.m. he was going with bullock-cart and heard hulla and came near the house of Khiru Mandal where he saw that the accused have assaulted Khalil Mian and broken his leg and hand and blood was coming.

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50. He has named all the accused persons and specifically deposed that Khiru Mandal (since dead) had Farsa in his hand, Manjhi Mahto (since dead) had Pasa of Kudal (spades) in his hand. Kati Mahto had sabbal in his hand, Giro Mahto had rod in his hand, Babulal Mandal was armed with Sabbal, Churka Singh was armed with Barchha, Arjun Mahto was armed with lathi, Narayan Mahto was armed with Kudal, Jogeshwar Mahto armed with Sabbal, Jodhi was armed with Kudal and all the accused persons have assaulted Khalil Mian by their arms and when they went to save Khalil Mian, he was also assaulted by Bodhi Mandal by lathi. He was further stated that he was assaulted by Manjhi Mandal by Pasa of Kudal, and, Kaila Mahto assaulted him by Sabbal on back.

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51. It is evident from the testimony of this witness that there is general and omnibus allegation against the appellants. As

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noticed this prosecution witness is injured person hence his presence at the place of occurrence cannot be doubted, but he also has not given the categorical statement that among the appellants who had given fatal assault to deceased.

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52. P.W.-3, namely, Nasima Khatoon (Daughter-in-law of the informant) was also one of the injured has deposed that all the accused persons have pulled Khalil inside the house and all the accused persons were armed and she has mentioned the armed which the accused persons were carrying. In Para No. 1, she has further stated that the petitioner Khalil made hulla and on which her father-in-law and husband came to the place of occurrence and saw the accused assaulting on the deceased and when she tried to save him, she was also assaulted and her father-in-law and husband were also assaulted. She has further stated that Khiru Mandal assaulted her and Kaila Mahto pulled her down by catching her hairs.

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53. It is noticeable that although P.Ws. 2 and 3 are injured eye witnesses and their presence at the place of occurrence cannot be doubted but, in their deposition, they have not disclosed the categorical details of the occurrence and manner and mode of assault.

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54. Further another injured eyewitness and informant of the case P.W5 had stated that his son was going to bring kerosene oil and as soon as he reached on the door of Khiru Mandal, his cycle was caught by Khiru Mandal, and Manjhi and Churka and

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Bodhi also caught him and pulled him inside the house and till he reached there, Manjhi Mahto assaulted him by pasa of spade (kudal) on left leg and on hulla of Khiru Mandal rest of the accused persons came variously armed and started assaulting his son and when he tried to save him, Khiru assaulted him by Farsa on right hand and Nasima Khatoon was also assaulted by Khiru Mandal by Bet (handle) portion of Farsa on leg and waist and Rajak Mian was also assaulted by Manjhi Mahto by Pasa of Kudal on Clavicles.

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55. Thus, it is evident from the aforesaid testimony of this witness that he was assaulted by Khiru Mandal with Farsa but as per the injury report Ext-4 there was no marks of incised wound on the body of this witness.

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56. At this juncture it would be apt to mention the testimony of investigating officer who had categorically stated that neither P.W.2 nor P.W.3 had stated him about their assault made upon him. For ready reference the relevant paragraph of his testimony is being quoted as under:

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“18. रज्जाकमियाांनेिुझेनह ांकहाथामकिुझेभ बोध िांडलत नलाठ

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िारा . िाझ िांडलकुदालकेपाससेिारातथाकैलािहतोसब्बलसेिारा तोहिवहासेभागगए।

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25. िुझेरज्जक मियाांनेयह नह ांकहा था मक बोध िांडल नेत न लाठ िारा . िाांझ कुदालकेपासासेिारातथाकैलािहतोसब्बलसेिारातोिैं वहाांसेभाग गया। स्वतः िुझेजेनरल िारप ट का िार सभ िुदालयोांके द्वाराकह गय है।

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िैंनेनस िा बानु का बयान कहुटाांड िेंरामि िेंमलया था तथा कहुटाांड िें रामि 9 बजे पहुांचा था। िुझे यह भ नह ां कह थ मक िेरा देवर

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मकसज टाांडजारहाथातथाख रूिांडलकेघरकेपासपहुांचातोख रू िांडल सायमकल पकड़मलया तथा िाझ िहतोकिर िेंलटक गया तथा बाबुिन मसांहहाथपकड़मलयाबोध िडलतथाकैलािांडलएक - एकपैर पकड़मलया। एक हाथ चुरका मसांह पकड़मलया एक हाथ सोिर पकड मलयासभ मिलकरख रूिांडलकेआांगनिेंघस टकरलेगए।हल्लापर प छे से ग रो िहतो , सुखदेव िहतो , बहादुर िांडल , एतवार िांडल , नािेश्वर िहतो , अज ु न िहतो , नारायण िहतो , जोध िडल , नाराण िहतो आए ख रू िांडल के हाथ िें फरसा िाांझ के पास कुदाल का पासा बाबुिन मसांह केहाथ सब्बल , कैला केहाथ सब्बल चुरका केहाथ िें फरसाजाध केहाथिेंहथौड , मगरोिहतोकेहाथकुदालतथाजगेश्वरके हाथिेंरडथा , दरवाजापरपहुांचनेकेबादखल लनेहल्लामकया।हल्ला परिैं , िेरेपमििेरेससुर , दौडकरआएऔरउसकेघरकेआांगनिेंिार रहाथादेखा।“

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57. Thus, it is evident that prosecution witnesses had not stated the aforesaid factual aspect in their statements given under 161 Cr.P.C, as such it may amount to major omission. Further all the aforesaid factual aspects have been narrated directly in their testimony before the trial court.

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58. It is well settled legal proposition that while appreciating the evidence; the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the prosecution case. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a

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ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt.

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59. The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454 , wherein, at paragraph-22, it has been held as under:-

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"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the timetested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants

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were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

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60. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98 , has held at paragraph-26 as under:-

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"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

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61. Now we have to look at the testimony of P.W. 4, who had performed autopsy on the dead body and on dissection under surface of chest wall left side, he found ecchymosed, 7^th to 9^th rib, left side chest fracture, left lung contused, heart contained blood left side and right side empty, chest cavity contained blood and clot. The doctor has further found that all the injuries were external and caused by hard and blunt substance. He has further opined that chest injury was sufficient to cause death in ordinary course of nature.

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62. Thus, from the aforesaid it is evident that as per the this witness no incised wound was present on the body of the deceased and this fact is contradictory in nature because all the injured witnesses have stated that the some of the appellants were armed with sharp cut weapon and they had assaulted the deceased with said weapon.

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63. Since the prosecution witnesses, i.e., P.W. 2, 3 and 5 are the injured eyewitness, as such, their presence at the place of occurrence can not be doubted but at the same time their testimonies are with omissions and contradictions and further from testimonies of the aforesaid witnesses, the involvement of the present appellants in murder of the deceased is not proved beyond reasonable doubt as such the appellants are entitled for benefit of doubt for the alleged murder of the deceased.

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64. It requires to refer herein that the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96 , wherein, it has been held at paragraph-7 as under: -

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"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their

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evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

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65. Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph32 and 33 has held as under:-

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"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

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33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by

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Bentham, "witnesses are the eyes and ears of justice.--- -”

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66. Further, as per ocular testimonies, however, the injuries on body of deceased were jointly attributed to the appellants, but the prosecution witnesses have not been able to testify as to which individual caused the fatal injuries, i.e., chest injuries.

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67. In the case of Amrik Singh vs. State of Punjab; 1993 Cri. LJ 2857 , the Hon'ble Apex Court has observed that where the injury which proved to be fatal was not attributed to any one of the accused, the accused who inflicted one injury on the head of the deceased was not responsible for other fatal injury.

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68. Thus, as stated above, as per post-mortem report no incises injury by sharp weapon was found on the deceased. From the discussion made herein above, it would be evident that the prosecution witnesses have made material improvements in their testimony vis-a-vis the statement made under Section 161 Cr.P.C.

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69. Thus, on evaluation of the testimony of the witnesses and the evidence we hold the appellants guilty under 304 Part II of the I.P.C.

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70. Consequently, the judgment passed by the court below is modified and this Court, hereby, finds appellants guilty for the offence under Section 304 Part II I.P.C. and sentence them for the period already undergone by them.

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71. Further from record it transpired that the appellants namely Kaila Mahto, Giro Mahto Son and Churka Singh have been convicted under Section 148 IPC and sentenced for one year for the offence under Section 148 IPC, and rest of the appellants have been convicted under Section 147 IPC and sentenced for six months, this Court while taking in to consideration the rigor of trial which have been faced by the present appellants, for the said offence, it would be deem it fit and proper to sentence them for the period already undergone by them.

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72. Since from the record, it is evident that appellants are on bail, therefore they are discharged from the liability of their bail bond.

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73. Accordingly, the judgment of conviction dated 08.09.1998 and order of sentence dated 09.09.1998 passed by the learned Addl. Sessions Judge-V, Giridih in Sessions Trial No.392 of 1995 are modified to the extent as discussed above and the appellants are sentenced for the period as stated hereinabove.

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74. The appeal is hereby dismissed with the modification of the judgment of conviction and order of sentence to the extent as indicated above.

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75. With the aforesaid observations/directions, the instant appeal stands dismissed.

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76. Let this order/judgment be communicated forthwith to the

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Court concerned along with the Trial Court Records.