1 Citation No. ( 2026:JHHC:5897-DB ) Criminal Appeal (DB) No. 757 of 2003 Against the judgment and order of conviction and sentence dated 08.05.2003 (sentence passed on 09.05.2003) passed by Sri S. N. Pandey, learned 1st Additional Sessions Judge, Jamtara in Sessions Case No. 100 of 1997/274 of 2001 1. Gopal Mahato, son of late Hakim Mahato 2. Mohan Mahato, son of late Hakim Mahato 3. Bharat Mahato, son of late Mukunda Mahato 4. Anil Mahato, son of late Jhakur Mahato All are residents of Village Simalbari, P.O. & P.S. Bindapathar, District Jamtara ... Appellants Versus The State of Jharkhand … Respondent ---- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE DEEPAK ROSHAN For the Appellants : Mrs. Snehlika Bhagat, Amicus Curiae For the Respondent (State) : Mrs. Vandana Bharti, APP For the Informant : Mr. Ashutosh Pd. Joshi, Advocate CAV on 11.02.2026 Delivered on 18. 02.2026 ---- Rongon Mukhopadhyay, J. : 1. Heard Mrs. Snehlika Bhagat, learned Amicus Curiae and Mrs. Vandana Bharti, learned APP assisted by Mr. Ashutosh Pd. Joshi, learned counsel appearing for the informant. 2. This appeal is directed against the judgment and order of conviction and sentence dated 08.05.2003 (sentence passed on 09.05.2003) passed by Sri S. N. Pandey, learned 1st Additional Sessions Judge, Jamtara in Sessions Case No. 100 of 1997/274 of 2001, whereby and whereunder, the appellants have been convicted for the offence punishable u/s 302/34 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life along with a fine of 2,000/- and in default of payment to undergo further rigorous imprisonment for three months. 3. The prosecution case arises out of the Fardbeyan of Tiket Choudhary recorded on 23.01.1996 in which it has been stated that the elder brother of 2 the informant, namely, Budhu Choudhary after feeding his shepherd was returning home when Gopal Mahato, Mohan Mahato, Bharat Mahato, Narayan Mahato, Anil Mahato and others variously armed had assaulted Budhu Choudhary who after such assault became unconscious. It has been alleged that when the informant, his brother Adalat Choudhary and Birua Devi tried to save Budhu Choudhary, Bishu Mahato and Madan Mahato had committed assault upon them with Farsa and Lathi. The reason for the occurrence is land dispute. Based on the aforesaid allegations, Nala (Bindapathar) P.S. Case No. 09/1996 was instituted for the offences punishable u/s 147, 148, 149, 323, 324 and 307 of the I.P.C. On completion of the 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 Case No. 100 of 1997. Charge was framed against the accused persons for the offence punishable u/s 148 and 302/149 of the I.P.C. which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as eight (08) witnesses in support of its case. P.W. 1 Bhagwan Murmu has stated that he was in his house when he heard some commotion and when he came out, he had seen Budhu Choudhary being assaulted by Gopal Mahato, Mohan Mahato, Kalo Mahato, Anil Mahato, Bishu Mahato, Narayan Mahato, Yudhishthir Mahato, Madan Mahato, Bharat Mahato, Duryodhan Mahato. Gopal Mahato and Kalo Mahato had Lathis, Anil Mahato had Gaita, Bishu Mahato had Farsa, Narayan Mahato had spear while the rest of the accused had Lathis in their possession. He and Mohan Hembram had tried to stop the assault, but of no avail. Budhu Choudhary had later on succumbed to his injuries. In cross examination he has deposed that he and Mohan did not receive any injuries. P.W. 2 Adalat Choudhary has stated that he was in his house when the accused persons were committing assault upon Budhu Choudhary. Budhu Choudhary was initially assaulted by Gopoal Mahato with Lathi and 3 thereafter with Lathi, spear and Gaita by Mohan Mahato, Kalu Mahato, Narayan Mahato and Anil Mahato. He had tried to save Budhu Choudhary, but he did not receive any injuries though his sister Birua Devi had sustained some injuries. In cross examination he has deposed that he had rushed to the place of occurrence on hearing the cry of alarm of Bhagat Murmu. The accused persons on seeing them had fled away. P.W. 3 Tiket Choudhary is the informant who has stated about the assault committed by the accused persons with various weapons upon Budhu Choudhary. He was assaulted by Madan Mahato, his sister was assaulted by Narayan Mahato with a spear, while Dukhu Mahato was assaulted by Mohan Mahato with a Lathi. The assault had taken place due to a land dispute. In cross examination he has deposed that arising out of the same incident, a case was instituted against him and others by the accused persons. The place of occurrence is at a distance of 500 meters from his house. They had rushed to the place of occurrence on the alarm raised by Mohan Hembram and Ishwar Murmu. He had been told by Bhagwan Murmu, Mohan Murmu and Charku Murmu that they had not seen the occurrence. P.W. 4 Dukhan Mahato has stated that he is a shepherd and Budhu Choudhary had come to give him his lunch. After having lunch, he was returning with Budhu Choudhary, when near the house of Ishwar Murmu, there was a quarrel between Budhu Choudhary and the accused persons after which Budhu Choudhary was assaulted by them. When he had requested the accused persons not to commit assault, he was also subjected to assault by Narayan and Mohan. When Tiket Choudhary came to save Budhu Choudhary, he was assaulted on his head by Bishu with a Farsa. Birua Devi was assaulted with a spear by Narayan Mahato on her fingers. He does not know the reason for the assault. In cross examination he has deposed that he was an employee of Budhu Choudhary. A case has been instituted against him by the accused persons relating to the same incident. 4 P.W. 5 Birua Devi has stated that on hearing a cry of alarm, she had rushed to the place of occurrence with Adalat Choudhary and Tiket Choudhary and she had seen the accused persons committing assault upon Budhu Choudhary. She was assaulted by Narayan Mahato with a spear. Adlat Choudhary, Tiket Choudhary and Dukhan Mahato had suffered injuries. In cross examination she has deposed that she has taken the name of eleven persons as accused. She had not disclosed about the assault to anyone. P.W. 6 Mishir Hembram has proved his signature on the seizure list which has been marked as Ext. 1. P.W. 7 Dr. Damadar Yadav was posted as a Civil Assistant Surgeon at Additional Primary Health Center, Bindapathar and on 23.01.1996, he had examined Budhu Choudhary and had found the following injuries on his person: i) Oblique injury 1cm x 1/4cm lacerated margins on upper part of occipital bone. Haematoma was present. ii) Oblique wounds 1/2" x 1/4" scalp deep over parietal part on left side posteriorly. iii) Oblique bruise 5" x 2" on left side of chest lower and middle part crepital was present. The condition of the patient was opined to be very serious. The injury report has been proved and marked as Ext. 2. He had examined Tiket Choudhary on 24.01.1996 and had found the following injuries: (i) Lacerated wound 4cm x 0.5 cm x skin deep over left side of frontal bone area margins are irregular. (ii) Contusion 3cm x 0.5 cm over left scapular region. Red in colour. All the injuries were opined to be simple in nature caused by hard and blunt substance. The injury report has been proved and marked as Ext. 2/1. On the same day, he had examined Adalat Choudhary and had found the following injuries on his person: 5 (i) Contusion 1.5 cm x 0.5 cm over right side of forehead. Red in colour. (ii) Contusion 2cm x 0.5 cm over left elbow joint. Red in colour. (iii) Abrasion 1.5 cm x 6 cm over right elbow joint, scab formed. All the injuries were opined to be simple in nature caused by hard and blunt substance. The injury report has been proved and marked as Ext. 2/2. He had also examined Birua Devi and had found the following injuries on his person: (i) Lacerated wound 1.5 cm x 0.5 cm over right hand margin are lacerated. (ii) Contusion 2 cm x 0.5 cm over frontal part of neck. Red in colour. (iii) Contusion 1.5 cm x 0.5 cm over wrist joint of left hand. Red in colour. (iv) Contusion 3 cm x 0.5 cm over left scapular region. Red in colour. All the injuries were opined to be simple in nature caused by hard and blunt object. The injury report has been proved and marked as Ext. 2/3. On the same day, he had examined Dukhu Mahato and had found the following injuries on his person: i) Abrasion 2 cm x 0.5 cm over left leg below knee joint scab found. The injury was opined to be simple in nature caused by hard and blunt object. The injury report has been proved and marked as Ext. 2/4. He has also proved the postmortem report which has been marked as Ext. 3 with objection. In cross examination he has deposed that the injuries on Budhu Choudhary could not have been caused by fall on hard substance. P.W. 8 Banshidhar Jha was posted as an Officer-in-Charge of Bindapatha P.S. and on 23.01.1996 Tiket Choudhary with his injured brother Budhu Choudhary, Adalat Choudhary and sister Birua Devi had come to the police station where the Fardbeyan of Tiket Choudhary had been recorded. He has proved the Fardbeyan which has been marked as Ext. 4. He has proved his endorsement report on the forwarding report and the Fardbeyan which have been marked as Ext. 4/1 and 4/2 respectively. The formal F.I.R. 6 has been proved and marked as Ext. 5. He had taken over the investigation. He had recorded the restatement of Tiket Choudhary and had also recorded the statements of Adalat Choudhary and Birua Devi. He has proved the requisitions on the injured which have been marked as Ext. 6 to 6/4. On 24.01.1996, he had come to know that Budhu Choudhary had died after which he had reached Bindapathar Hospital and had prepared the inquest report of Budhu Choudhary which has been proved and marked as Ext. 7. In the night of 23.01.1996, he had inspected the place of occurrence which is a village road near the house of Ishwar Murmu. The house of the appellants and the deceased are at a distance of 100 meters from the place of occurrence. He had verified the records and had found several cases instituted between both the sides. On completion of investigation, he had submitted charge sheet. In cross examination he has deposed that a counter case was also instituted by Gopal Mahato on the basis of which Nala (Bindapathar) P.S. Case No. 10/1996 was lodged. He has proved the Fardbeyan of Gopal Mahato which has been marked as Ext. A and the formal FIR as Ext. B. He has also proved the requisition of the injured Gopal Mahato and Manoranjan Prasad Yadav which have been marked as Ext. C and C/1. In Nala (Bindapathar) P.S. Case No. 10/1996, he had recorded the statement of the injured Gopal Mahato, Manoranjan Mahato and Yudhisthir Mahato as well as the statement of other witnesses. He had received the injury reports and has submitted charge sheet. 5. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the commission of the offence. 6. It has been submitted by Mrs. Snehlika Bhagat, learned Amicus Curiae that the learned trial court has come to an erroneous conclusion in convicting the appellants. Despite the involvement of some of the accused persons in the assault surfacing in the evidence of the witnesses assigning specific role to them, but without any appropriate reasons, these accused persons have been acquitted. Mrs. Bhagat, learned Amicus Curiae has submitted that admittedly there was a previous enmity between both the sides which is evident from the testimony of PW-8 (I.O.) as well and arising out of the same incident a 7 counter case had also been lodged by the accused persons in which charge sheet has been submitted. Several of the appellants had also suffered injuries and therefore it cannot be said that the appellants were the aggressors. The evidence of the witnesses has been copiously referred to by Mrs. Snehlika Bhagat, learned Amicus Curiae in order to impress upon the Court that the case of the appellants stands on a similar footing to those accused persons who have been acquitted from the charges levelled against them. 7. Learned APP has submitted that PW-1, PW-2, PW-3, PW-4 and PW-5 are the eye witnesses and some are injured witnesses and their evidence clearly demarcates, the role played by the appellants in committing a brutal assault upon Budhu Choudhary resulting in his death. 8. Mr. Ashutosh Pd. Joshi, learned counsel for the informant has relied upon the evidence of PW-3 and has submitted that there is consistency in the evidence of PW-3 and supported by other eye witnesses indicating the manner of assault resorted to by the appellants. 9. We have heard the learned counsel for the respective sides and have also perused the trial court records. 10. The evidence of the Investigating Officer who has been examined as PW-8 reveals about the previous enmity between the parties as several cases were instituted certifying the said fact. The incident of assault in the present case therefore can be attributed to the grudge, both parties had against each other and what would transpire from the evidence of PW-8 is that some of the accused persons had also suffered injuries categorizing the assault as a free fight between both the sides. The learned trial court has acquitted Duryodhan Mahato and Yudhisthir Mahato on the ground that they have not been named in the First Information Report. This ground seems to be erroneous if considered in the touch stone of the eye witness accounts who have stated about these accused essaying an active role in committing assault upon Budhu Choudhary. When all the witnesses have consistently stated about the assault committed by Duryodhan Mahato and Yudhisthir Mahato their case could not have been considered in a separate pedestal. 8 Be that as it may, the entire gamut of allegations surfacing from the evidence clearly reveals that the act of assault was not premeditated and was the effect of long-standing enmity and the same led to a free fight culminating in injuries suffered by both the sides though unfortunately one of the injured had died. Such background facts would attract an offence u/s 304 Part II of the I.P.C. As stated by the learned APP, the appellants have remained in custody for three months. They are facing the rigors of trial since 1996, and all the appellants are now aged more than 60 years. In the case of “Shrikrishna versus State of Madhya Pradesh” reported in (2026) SCC OnLine SC 42, it has been held as follows: “6.1. The appellant is more than 80 years of age at present. Since the appellant is an old and aged person, and in the December of his life, it would be harsh and inadvisable to send him behind the bars again at this stage. The courts are not supposed to be insensitive. Therefore, in view of the advanced age of the appellant and considering the totality of the facts and circumstances, while upholding the conviction of the appellant under Section 304, Part II, IPC, the sentence of the appellant is reduced to what is already undergone, to be substituted accordingly.” Taking a cue from the aforesaid judgment and based on what has been stated by us above we accordingly modify the conviction of the appellants to one under Section 304 Part II of the I.P.C. and consequently modify the sentence as well to the period already undergone. This appeal stands disposed of. Pending I.A., if any, also stands closed. We appreciate the efforts rendered by Mrs. Snehlika Bhagat, learned Amicus Curiae is assisting this Court and consequently, we direct the Member Secretary, Jharkhand High Court Legal Services Committee to extend an amount of Rs. 10,500/- to Mrs. Snehlika Bhagat, learned Amicus Curiae within a period of four weeks from the date of receipt/ production of a copy of this judgment. 9 Let a copy of this order be handed over to the Member Secretary, Jharkhand High Court Legal Services Committee. (RONGON MUKHOPADHYAY, J.) (DEEPAK ROSHAN, J.) Jharkhand High Court, Ranchi Dated the 18th February, 2026 MK/N.A.F.R. Uploaded on 27.2.2026