1 Criminal Appeal (DB) No. 240 of 1998 (R) Neutral Citation No. ( 2025:JHHC:18424-DB ) IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Criminal Appeal (DB) No. 240 of 1998 (R) Nandlal Mohato @ Nando Lal Mahto, son of Banmali Mohato, resident of village Jareya, PS Sonahatu, Dist. Ranchi ... Appellant -Versus- The State of Bihar now Jharkhand ...Respondent CORAM :- HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellant : Mr. Shashank Shekhar, Amicus Curiae For the State : Mr. Subodh Kr. Dubey, APP … CAV on: 04/12/2024 Pronounced on: 01/07/2025 Per, R.Mukhopadhyay, J. Heard Mr. Shashank Shekhar, learned amicus curiae and Mr. Subodh Kr. Dubey, learned APP. 2. This appeal is directed against the judgment of conviction and the order of sentence dated 10.08.1998 passed by Shri Birendra Singh, learned 1st Additional Judicial Commissioner, Khunti in Sessions Trial No. 291 of 1983, whereby and whereunder, the appellant has been convicted for the offence under section 302 of the Indian Penal Code and has been sentenced to RI for life. 3. The prosecution case arises out of the fardbeyan of Biseshwar Mahto recorded on 27.07.1979 in which it has been stated that on 26.07.1979 at 06:30 p.m. the informant was coming on a bicycle and about 10 to 15 steps behind him his uncle Dhaniram Mahto was also coming and as soon as he reached Godma Peepal Bandh Road the accused persons variously armed had come from behind the bushes. All the accused persons were variously armed. It has been alleged that when the uncle of the informant reached near the bushes the accused persons attacked him. The uncle of the informant tried to escape but he fell down at which Khudi Pahan, Hare Krishna Mahto and Chaitan Dom cut his neck. The other accused persons had pressed him to the ground. When the informant raised an alarm Jainath Mahto, Radha Mahto and 2 Criminal Appeal (DB) No. 240 of 1998 (R) Durga had come. The accused persons after committing the assault had fled away. The uncle of the informant died on account of the assault. Based on the aforesaid allegation, Sonahatu PS Case No. 8 of 1979 was instituted under sections 148, 149 and 302 of the Indian Penal Code. 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. 291 of 1983. Charge was framed against the accused/ appellant under section 302 and 148 of the Indian Penal Code which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as eight witnesses in support of its case. 5. PW-1 Jainath Mahto and PW-2 Radharam Mahto did not support the case of the prosecution and were declared hostile by the prosecution. 6. PW-3 Dr. R.S. Prasad was posted as a Professor and Head of the Department of Forensic Medicines, RMCH, Ranchi and on 27.07.1979 he had conducted autopsy on the dead body of Dhani Ram Mahto and had found the following: “Incised wound:- (1) 5x1x1 cm on the front left shoulder part directed down and laterally. (2) 8x1x1 cm little left to the previous wound. (3) 3x2x2 cm just above the right collar bone. (4) 8x2x2 cm on the left half of the head directed forwarded cutting the bone and brain matter. (5) 3x1x1 cm on the left extreme/forehead. (6) 4x1x1 cm on the rigor occipital region directed downwards. The inner margin was under cut. (7) 5x2x2 cm on the inner side of right palm. (8) 6 x ¼ x ¼ cm on the right outer side of right arm. Abrasion (1) 1 x ½ cm at the lower end of the breast bone. All the injuries were ante-mortem. Decapitation and incised wounds were caused by sharp cutting weapons and the abrasions by hard and blunt substance. The death was caused by the above noted injuries giving rise to bleeding and shock.” He has proved the post-mortem report which has been marked as Ext.3. 7. PW-4 Biseshwar Mahto is the informant who has stated that he was going from Rahe to his house on a bicycle and he was being followed by his uncle Dhaniram Mahto who was also on a bicycle. When he reached near the 3 Criminal Appeal (DB) No. 240 of 1998 (R) embankment at Gomda village, Nandlal Mahto, Hare Krishna Mahto, Chaitan Dom, Dhaneshwar Dom and others who were lurking nearby came out and started assaulting Dhaniram. Nandlal had a tabla while the others had bhujalis. He out of fear fled away to his house and disclosed about the incident to his brothers. Several persons came rushing to the place of occurrence where they found his uncle lying dead. His fardbeyan was thereafter recorded at the police station. In cross-examination he has deposed that his uncle was 30-35 yards behind him. When the commotion started between the accused and his uncle he had turned around and saw 4-5 persons having surrounded his uncle. It was around 07:30 p.m. Darkness was descending. He had recognized some of the accused because they belong to adjacent villages. When the assault had started he had left the place. He, his two brothers and others along with weapons had arrived at the place of occurrence where he found his uncle dead by then. 8. PW-5 Raghu Mahto has stated that he was in his house when the son of Dhaniram informed him that Dhaniram has been murdered. At this information he went to the said place and found the dead body of Dhaniram. He had not met Biseshwar. In cross-examination he has deposed that no one had disclosed to him about the name of the assailant. Even Biseshwar had not disclosed their names. 9. PW-6 Haradhan Mahto has stated that on 26.07.1979 after his school was over he left for Rahe and reached at 05:30 p.m. After having tea at Rahe he left at 05:45-06:00 p.m. and when he reached Putri Bandh at Mouza Gomda he saw some persons hiding behind the culvert and one of them came out and caught hold of the bicycle of Dhaniram. He has stated that thereafter 12-13 persons came out, surrounded Dhaniram and started assaulting him with bhujali and farsa. He had recognized Nando Mahto, Khudiram Munda, Dhaneshwar Dom, Chaitan Dom, Abhiram Dom and Hare Krishna Mahto as the persons who had committed assault upon Dhaniram Mahto. The accused Nando had severed the head from the body of Dhaniram. All the accused persons were indiscriminately committing assault upon Dhaniram. He has proved the inquest report which has been marked as Ext.4. In cross-examination he has deposed that the distance between Putri Bandh to Gomda mouza is about half a kilometer. It was a rainy season and several persons were working in their fields. He is the nephew of Dhaniram. At that point of time the case relating to the murders of Dwarka and Dani 4 Criminal Appeal (DB) No. 240 of 1998 (R) Dutt in which Dhaniram was an accused was pending. He was 10-12 ft. behind Dhaniram. It was getting dark at the time of the incident. He had not gone to the police station. After the assailants had left he had gone to the house of Dhaniram and informed his son about the incident. 10. PW-7 Jagannath Ram has proved the fardbeyan which has been marked as Ext.5. 11. PW-8 Banwari Lal Jaiswal has proved the hand writing and signature of Prem Sundar Singh on the inquest report which has been marked as Ext.4. 12. The statement of the accused was recorded under section 313 of the Code of Criminal Procedure in which he has denied his complicity in the commission of murder of Dhaniram Mahto. 13. It has been submitted by Mr. Shashank Shekhar, learned amicus curiae that some of the witnesses have been declared hostile by the prosecution and so far as PW-4 and PW-6 are concerned, they are not the eye-witnesses to the occurrence. The fardbeyan of PW-4 does not register the appellant as the main accused but in course of trial the development has been made to the effect that it was the appellant who had severed the head of the deceased. Non- examination of the Investigating Officer has also caused prejudice to the defence. 14. Mr. Subodh Kr. Dubey, learned APP has submitted that the appellant was one of the persons instrumental in committing the murder of Dhaniram Mahto and the post-mortem report corroborates the manner of assault. 15. We have heard the learned counsel for the respective sides and have also perused the trial Court records. 16. The deceased Dhaniram Mahto was encircled by the accused persons while he was returning on his bicycle from Rahe, brutally assaulted and his head was severed from the trunk which resulted in instantaneous death. In course of trial, the prosecution has projected two witnesses, PW-4 and PW-6 of having witnessed the assault but none has stated about the presence of each other at the place of occurrence. In the fardbeyan it has been mentioned that Khudi Pahan, Hare Krishna Mahto and Chaitan Dom had cut the neck of Dhaniram Mahto. The other accused persons including the appellant are said to have pinned Dhaniram Mahto to the ground to facilitate his murder. In his evidence PW-4 has stated about all the accused persons committing assault upon Dhaniram Mahto. His evidence with respect to the assault is diametrically opposite to his fardbeyan as he had become frightened and fled away towards his house which would indicate that he had not seen the actual 5 Criminal Appeal (DB) No. 240 of 1998 (R) assault. Apart from such glaring contradiction in the fardbeyan of PW-4 and his evidence during trial, the other significant feature is the timing of the incident. The incident had taken place at around 7:15 p.m. and it was a rainy season. The assault took place in the road and there were fields nearby. Darkness had already descended and absence of street light is a foregone conclusion since the incident itself had taken place in the year 1979 in a rural set up. The assailants were from different villages. Identification of the accused persons therefore would be a difficult proposition considering the ambience in which the murder had taken place. PW-6 claims himself to be a chance witness whose presence at the place of occurrence has not been noted by PW-4. PW-6 in spite of the darkness has given a vivid description of the assault and he had not fled away but watched the entire episode before rushing to the house of Dhaniram to inform his family members. The incident was reported to the family members by PW-4 and PW-6 but here again none have whispered about the presence of each other. PW-6 has stated about the darkness and presence of several villagers in the vicinity working in their fields but it seems that none of such persons have been examined by the prosecution. In view of the apparent contradictions and inconsistencies in the evidence of PW-4 and PW-6 they cannot be considered to be eye-witnesses to the incident. Once we deescalate the stature of PW-4 and PW-6 as eye- witnesses no other evidence, far less any circumstantial evidence appears in the horizon to point to the guilt of the appellant. The other features of the case is the non-examination of the Investigating Officer and absence of any recovery from the possession of the appellant. All these facets of the case leads us to conclude that the prosecution has miserably failed to prove its case beyond all reasonable doubt and consequently, we set aside the judgment of conviction and the order of sentence dated 10.08.1998 passed by Shri Birendra Singh, learned 1st Additional Judicial Commissioner, Khunti in Sessions Trial No. 291 of 1983. 17. This appeal is allowed. 18. Since the appellant is on bail, he is discharged from the liability of his bail bonds. 19. Pending IA, if any, stands closed. 20. We take this opportunity to appreciate the assistance rendered by Mr. Shashank Shekhar, learned amicus curiae and direct the Member-Secretary, High Court Legal Services Committee to extend the stipulated fees to Mr. Shashank Shekhar, learned amicus curiae within a period of four weeks from 6 Criminal Appeal (DB) No. 240 of 1998 (R) the date of receipt/ production of a copy of this order. 21. Office is directed to send the copy of this order to the Member- Secretary, High Court Legal Services Committee immediately and forthwith. (RONGON MUKHOPADHYAY, J.) (ARUN KUMAR RAI, J.) Jharkhand High Court, Ranchi, Dated:01/07 /2025 S.B.