Suresh Mahto Vs the State of Bihar

Neutral Citation No. ( 2025:JHHC:13201-DB )

Criminal Appeal (DB) No. 275 of 1997 (P)

[ Against the judgment and order of conviction and sentence dated 09.05.1997 (sentence passed on 12.05.1997) passed by Shri Swaroop Lal, learned 1^st Additional Sessions Judge, Godda in Sessions Trial No. 39 of 1995/07 of 1996 ]

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1. Roop Narayan Mahto @ Kaila Mahto (Since Deceased)

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2. Budhu Mahto (Since Deceased)

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3. Suresh Mahto, S/o Roop Narayan Mahto

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4. Gobra Mahto @ Gobardhan Mahto, S/o Roop Narayan Mahto

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5. Sristidhar Mahto (Since Deceased) All residents of Village Jamua, P.S. Pathargama, DistrictGodda …. …. Appellants

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Versus

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The State of Bihar (now Jharkhand) …. …. Respondent

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P R E S E N T

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HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellants : Mr. Vishnupad Singh, Amicus Curiae For the State : Mrs. Nehala Sharmin, Spl. P.P.

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C.A.V. on 09/04/2025 Pronounced on 01/05/2025 Per Rongon Mukhopadhyay, J.

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Heard Mr. Vishnupad Singh, learned Amicus Curiae for the appellants and Mrs. Nehala Sharmin, learned Spl. P.P. for the State.

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2. This appeal is directed against the judgment and order of conviction and sentence dated 09.05.1997 (sentence passed on 12.05.1997) passed by Shri Swaroop Lal, learned 1^st Additional Sessions Judge, Godda in Sessions Trial No. 39 of 1995/07 of 1996, whereby and whereunder, the appellants have been convicted for the offence punishable u/s 302/120B of the IPC and have been sentenced to undergo imprisonment for life.

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3. The prosecution case arises out of the fardbeyan of Pawani Devi recorded on 30.091995, in which, it has been stated that on 29.09.1995, the informant along with her husband Lalit Mahto had gone to the market in Gandhigram to purchase some

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essential articles. They were met by Budhu Mahto and Sristidhar Mahto in the market and at their insistence the informant was sent home by her husband with the purchased articles with an assurance by her husband that he would have his meals once he returns. The informant went home and when her husband did not return even in the next morning, she asked Budhu Mahto about the whereabouts of her husband. Budhu Mahto told the informant that her husband is at Gandhigram. On the same day at noon, the informant came to know that the dead body of her husband is lying in a canal. At this, the informant and her family members went to the said spot and found her husband lying dead with marks of violence in his body. It has been alleged that Bisheshwar Yadav had confided in her that in the previous evening at 7:30 P.M. her husband was seen in Gandhigram market with Budhu Mahto and Sristidhar Mahto and Bisheshwar Yadav had told him to go home to which both the accused had assured that they will ensure that the husband of the informant reaches his place of duty. The informant has also stated that Bisheshwar Yadav told her that her husband Budhu Mahto and Sristidhar Mahto went away informing that they were proceeding to Sundernadi More. The informant had suspected that Budhu Mahto and Sristidhar Mahto were involved in the murder of her husband.

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Based on the aforesaid allegations Pathargama P.S. Case No. 116 of 1995 was instituted for the offence punishable u/s 302/34 of the IPC. 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 Sessions Trial No. 39 of 1995/07 of 1996. Charge was framed against the accused u/s 302/120B of the IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

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4. This appeal has abated so far as the appellant nos. 1, 2 and 5 are concerned and survives only with respect to the

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appellant nos. 3 and 4 (Suresh Mahto and Gobra Mahto @ Gobardhan Mahto respectively). 5. The prosecution has examined as many as seven witnesses in support of its case.

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6. P.W.1 (Shivcharan Marandi) has stated that at around 7:30-8:00 P.M. he was going to defecate and following him was his nephew Baijnath Murmu. Baijnath had met Gobardhan Mahto and they starting conversing and Baijnath came to him and disclosed that Gobardhan Mahto had told him that he is coming from the Bahiyar. He thereafter sat to defecate and he saw two persons going on the road one of whom was identified as Gobra @ Gobardhan Mahto. On the next day at 10:00 A.M. he came to know that the Chowkidar Lalit Mahto has been murdered the previous night and his body was thrown in the Bahiyar.

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In cross-examination, he has deposed that Baijnath had disclosed to him about Gobardhan.

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7. P.W.2 (Bisheshwar Yadav) has stated that he had gone to the weekly market where he saw Lalit Chowkidar. In the evening when he was returning, he saw Lalit in an intoxicated condition going with Sristidhar Mahto and Budhu Mahto who were in a normal state. When he asked Lalit to go back home, as he was drunk, Lalit told him that he is going for his duty at Sundarnadi. In the next morning at 8:00-9:00 A.M. there was an alarm that Lalit Chowkidar has been murdered at which he went and saw the dead body which had an injury on his neck inflicted with a dagger. He suspects that all the accused had committed the murder of Lalit Chowkidar.

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In cross-examination, he has deposed that it was dark. He had seen the deceased and the accused sitting in a wine shop. He had stood near the wine shop for 2-4 minutes and when the accused and the deceased left the wine shop he also left. 8. P.W.3 (Pawani Mosamat) is the informant and the wife of the deceased Lalit Mahto. She has stated that her husband

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was the Chowkidar of Latotiya, Gandhwapur, Gobra, Gumru and Sonarachak. It was a Friday when Suresh had called her husband and taken him to Gandhigram and she had also accompanied them. Some essentials and 500 grams Mutton were purchased and she was waiting to return the money when Budhu asked her to go home as the children were in the house. She returned back home while her husband stayed with Budhu. Budhu had told her to prepare food and after duty, her husband would come to have his meals. Apart from Budhu, Gobra, Sristidhar, Kail @ Roop Narayan Mahto and Suresh were present. Her husband did not return at night. Her husband was found murdered in Khairbanni Bahiyar with marks of injury on his neck. She suspected that the five persons who were with her husband have committed the murder. The accused persons had committed the murder since they were annoyed with her husband, as he had reported to the Police and assault committed upon his brother-in-law by Gobra and Suresh. She has proved her fardbeyan, which has been marked as Exhibit1.

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In cross-examination, she has deposed that she in her fardbeyan had not stated that Suresh had taken her husband to the market. She had later on come to know that her husband had consumed liquor. 9. P.W.4 (Goutam Mahto) has stated that he had gone to the market and he met Chowkidar Lalit Mahto on the way and along with Lalit Mahto were Roop Narayan Mahto, Budhu Mahto, Gobardhan Mahto and Suresh Mahto. At that point of time, they were coming from Barabandh Hatia. There is a pond from besides which the accused persons and Lalit Mahto went. Near Khairbanni Lalit Mahto was dragged by the accused persons towards the paddy field where Gobardhan and Suresh asked Roop Narayan Mahto to kill Lalit Mahto. He was watching from the hillock. Lalit Mahto was assaulted with a dagger on neck. Suresh Mahto and Gobardhan Mahto had caught hold of Lalit Mahto while Roop

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Narayan Mahto cut his neck with a dagger. The accused persons came to know that somebody was hiding and watching. The accused persons thereafter left by threatening him not to disclose about the incident to anyone.

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In cross-examination, he has deposed that it was 8:30 P.M. and the accused persons were at a distance of twentyfive yards from the place from where he was watching. He had seen them coming and thereafter leaving. He had seen the occurrence by hiding himself in a boulder kept atop the hillock. He had reached his house at 11:00 P.M. After having his meals, he slept. He had not disclosed about the incident to the wife of Lalit. He woke up in the next morning at 8:00-9:00 A.M. He had not disclosed the incident to his family members. When there was an alarm that Lalit Mahto has been murdered, he had gone to the place of occurrence. He had not disclosed about the incident to anyone. He had signed on the fardbeyan of the wife of Lalit Mahto.

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In cross-examination, on recall he has proved his signature on the seizure list of the seized blood-stained earth and grass.

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10. P.W.5 (Kameshwar Mahto) has stated that he was on duty at Muradghatti Pahar when he had seen Lalit Mahto, Kail, Gobra, Budhu, Suresh and Sristidhar going. After an alarm was raised, he had come to know that Chowkidar Lalit Mahto has been murdered. He came to know that Gobra, Kaila, Budhu, Suresh and Sristidhar had committed the murder with dagger.

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In cross-examination, he has deposed that he is the Chowkidar of Barkon Khairbanni. He had seen the accused persons going at around 8:00-9:00 P.M. He had gone to the place of occurrence with the Police.

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11. P.W.6 (Rajendra Singh) was posted at Pathargama P.S. and on 30.09.1995, he had recorded the fardbeyan of Pawani, in which, the witness Goutam Mahto had signed. He has proved the formal FIR, which has been marked as Exhibit-3, and the -5-

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inquest report has been marked as Exhibit-4. The challan prepared for sending the dead body for post-mortem examination has been marked as Exhibit-5. He has proved the seizure list as well as the confessional statement of Sristidhar Mahto which have been marked as Exhibits-6 and 7 respectively. He had inspected the place of occurrence, which is at Mauza Khairbanni in a dry pond situated besides the Godda Peerpaiti road. It is a lonely place. The grass was found crushed between the road and the place of occurrence due to the dragging of the body. He had recorded the statements of the witnesses, obtained the post-mortem report and on the orders of the superior authorities had submitted charge sheet. At the time of apprehending Gobra Mahto he had sustained some injuries. The letter through which Gobra Mahto was treated has been proved and marked as Exhibit-8.

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In cross-examination, he has deposed that Goutam Mahto had signed on the fardbeyan. Neither in the fardbeyan nor in her restatement Pawani Devi had stated that Suresh had taken away her husband to the Hatia. She had also not stated that Budhu Mahto had taken the packet of Mutton from the hands of her husband and gave it to her. The blood-stained earth was not sent for forensic examination. 12. P.W.7 (Dr. Satyendra Mishra) was posted as a Civil Assistant Surgeon at Sadar Hospital, Godda and on 30.09.1995 he had conducted autopsy on the dead body of Lalit Mahto and had found the following:

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(1) Ante mortem injuries external.

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(a) An incised wound 1½” x ¾” x 2½” over the left sub mandibular region with cortical excision of the mandibular body caused by a sharp cutting weapon. Nature of wound is grievous.

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(2) On dissection:- Head:- Bony skull- intact. Meninges & brain pale.

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Neck:- All important structures i.e. internal jugular vein carotid artery and rigors nerve of left carotid triangle completely severed and lacerated Trachea:- NAD, Para tracheal muscles normal. Thorax:- Bony cage was intact. Heart:- Both sides empty. Lungs normal. Abdomen:- Stomach contained mucinous material only. Intestine full of gas and faecal matter. Liver:- Spleen kidneys pale. Otherwise normal.

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Bladder (Urinary):- About 150 ml of urine present External Genitalia:- NAD Probable time since death:- Within 36 hours.

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The cause of death was opined to be due to severe haemorrhage and shock resulting from the above-mentioned injuries. The post-mortem report has been proved and marked as Exhibit-9. The injuries were caused by sharp cutting weapon like dagger.

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13. The statements of the accused were recorded u/s 313 Cr.P.C., in which, they have denied their complicity in committing the murder of Lalit Mahto.

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14. Mr. Vishnupad Singh, learned Amicus Curiae for the appellants has submitted that there is no evidence suggestive of the involvement of appellants in committing the murder of Lalit Mahto. P.W.4 claims himself to be an eye-witness but his silence in not disclosing what he had witnessed has diluted the case of the prosecution. P.W.3 had not taken the name of the appellants in her fardbeyan but had subsequently developed her case implicating the appellants as well.

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15. Mrs. Nehala Sharmin, learned Spl. P.P. for the State has primarily relied upon the evidence of P.W.4 while submitting that due to the threat meted out to him, he had initially kept silent but had subsequently spelt out what he had seen and the defence has failed to elicit any contradiction in order to get such evidence discarded.

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16. We have heard the learned counsel for the respective parties and have also perused the Trial Court Records. 17. The prosecution has propounded two theories in support of its case. The first is the appellants and other persons being seen with the deceased and secondly the eyewitness account of P.W.4. In the fardbeyan, the name of the appellants does not figure though in her evidence as P.W.3 the informant has noted the presence of the appellants as well. P.W.2 is another witness who has stated about the deceased being seen in the company of Budhu Mahto and Sristidhar Mahto when he was returning from the weekly market. He has not named the present appellants. P.W.5 who is a Chowkidar has claimed to have seen the deceased in the company of the accused persons including the appellants as well. The last seen theory is a weak piece of evidence and can gain muscle when there are other corroborative features present in the prosecution case. The prosecution has by way of supportive evidence highlighted the testimony of P.W.4. On perusal of the evidence of P.W.4 it seems that when he had witnessed the incident of murder from a hillock it was around 8:30-9:00 P.M. and as per P.W.6 (I.O.) the site where the murder took place was lonely. This would lead to a doubt in the version of P.W.4 considering the fact that despite all these odds he had given a vivid description of the occurrence. Apart from these irregularities, what appears glaring is the silence of P.W.4 and not disclosing about the incident to anyone. Threat perception was the sole factor according to the learned Spl. P.P., which prompted P.W.4 from disclosing about the incident but we find that P.W.4 had signed as a witness in the fardbeyan of P.W.3. The fardbeyan of P.W.3, therefore, does not name the appellants but had depicted the last seen theory including the other accused persons and if at all P.W.4 had received a threat he would have desisted himself from being a witness. The silence of P.W.4 and the apparent absence of any threat as we have demonstrated above would lead to a conclusion

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that the evidence of P.W.4 cannot be relied upon for the purposes of conviction of the appellants. As we dissect the evidence of P.W.4, the last seen theory in absence of any other corroborative materials pales into insignificance. The learned trial court had erroneously come to a finding of guilt of the appellants and consequently, we hereby set aside the judgment and order of conviction and sentence dated 09.05.1997 (sentence passed on 12.05.1997) passed by Shri Swaroop Lal, learned 1^st Additional Sessions Judge, Godda in Sessions Trial No. 39 of 1995/07 of 1996.

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18. This appeal is allowed.

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19. Since the appellants are on bail they are discharged from the liability of their bail bonds.

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20. We take this opportunity to appreciate the assistance rendered to us by Mr. Vishnupad Singh, learned Amicus Curiae and consequently direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to Mr. Vishnupad Singh, learned Amicus Curiae within a period of three weeks from the date of receipt/production of a copy of this order.

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21. Office is directed to transmit the order to the Member Secretary, High Court Legal Services Committee immediately and forthwith.

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(Rongon Mukhopadhyay, J.)

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(Arun Kumar Rai, J.)

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High Court of Jharkhand at Ranchi Dated, the 1^st day of May, 2025. A. Sanga /-

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Suresh Mahto v. the State of Bihar

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Suresh Mahto v. the State of Bihar

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