CRIMINAL APPEAL No.156 of 1988
WITH
CRIMINAL APPEAL NO.98 of 1998
Against the judgment of conviction and order of
sentence dated 11th February, 1988 passed by 6th
Additional Sessions Judge, Munger in Sessions
Case No.324/83.
Cr.Appeal No.156 of 1988
RIT LAL MAHTO------------------------Appellant
Versus
STATE OF BIHAR----------------------Respondent
CR. APP (DB) No.98 of 1988
1. BHOLA MAHTO
2. PARMESHWAR MAHTO
3. LUKHAR MAHTO &
4. JHUPAR MAHTO--------------------------Appellants
Versus
STATE OF BIHAR------------------------Respondent
------
For the appellants:-Sri Farooque Ahmad Khan
Sri Indu Bhushan Prasad,Advocates
(in Cr.Appeal No.98 of 1988)
For the appellant:- Sri Rakesh Kumar Sinha No.1
Sri Anuj Prakash,Advocates
(in Cr.Appeal No.156 of 1988)
For the State:- Sushri Shashi Bala Verma,A.P.P.
P R E S E N T
THE HON'BLE SRI JUSTICE DHARNIDHAR JHA
THE HON'BLE SRI JUSTICE AKHILESH CHANDRA
Dharnidhar Jha & Six accused persons were put on trial by the
Akhilesh Chandra,JJ.
learned 6th Additional Sessions Judge, Munger in
Sessions Trial No.324 of 1983. They had been charged
together under Sections 302 and 149 of the IPC
except acquitted accused Dwarika Mahto who was
charged under Section 302 read with 120B of the
Penal Code. The appellant Rit Lal Mahto was also
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separately charged under Section 302 of the Penal
Code. The learned trial Judge while delivering the
judgement on the 11th of February,1988 acquitted
accused Dwarika Mahto of the charges framed against
him and found the five appellants of the two appeals
guilty. Appellant Rit Lal Mahto was found guilty of
committing offence under Section 302 of the Penal
Code and was directed to suffer rigorous
imprisonment for life. The two appellants Bhola
Mahto and Parmeshwar Mahto-appeal of Jhupar Mahto
and Lukhar Mahto having abated-were convicted of
offence under Sections 302 and 149 of the Penal Code
and each of them was directed to suffer rigorous
imprisonment for life. The two appeals were
preferred by them for challenging the conviction and
sentences inflicted upon each of them.
2. We have heard the two appeals together
and we are disposing of them by this common
judgement.
3. P.W.8 Most. Paitri Devi, who happened to
be the wife of the deceased Lakhan Mahto, gave her
fardbeyan to the officer-in-charge of Chakai police
station stating that she and her husband were
sleeping outside their house by the side of the wall
on two separate cots. The wife of the younger
-3-
brother of the deceased, namely, Kaili
Devi(P.W.2)was also sleeping with her child just
near by. When it was about mid-night and when the
moon had come out, she woke up on picking up the
sound of arrival of some persons and found the eight
accused persons named in the FIR there who were
armed with lathi, farsa and tangi. They all came
near the deceased who was sleeping. P.W.8 stated
that accused Jhupar Mahto and Lukhar Mahto(died
during the pendency of the trial) were armed with
farsa, whereas appellant Rit Lal Mahto had a tangi
in his hand. Other accused persons were armed with
lathi.
4. P.W.8 specifically alleged that appellant
Rit Lal Mahto gave a blow with tangi on the left
temporal region of the deceased while he was
sleeping on the cot as a result of which he wreathed
in pain and died instantaneously. Other accused
persons, thereafter, started dragging out the dead
body of her husband. The informant raised a cry
imploring the people of village to come as the
accused persons were attempting to take away the
dead body of her husband. The cries of P.W.8
attracted Sukho Mahto(P.W.8), Sarju Mahto(P.W.1),
Kaili Devi(P.W.2), Mahadeo Mahto(P.W.5) and others
-4-
upon which the accused persons fled away leaving the
dead body of her husband. The informant claimed that
the witnesses had seen the occurrence and had
identified the accused persons.
5. As regards the motive for commission of
the offence it was stated by P.W.8 that about four
days prior to the date of occurrence there had been
some quarrel between the deceased and accused
Dwarika Mahto and during that course Dwarika Mahto
had given out that he will behead the deceased and
it was why the husband of P.W.8 had been murdered.
6. The investigating officer of the case has
not been examined. As such, we do not know as to how
the investigation proceeded, but this much appears
clear that on the basis of Ext-2, the fardbeyan of
P.W.8, FIR of the case, Ext-4 was drawn up and
inquest report was also prepared, after holding
inquest on the dead body of the deceased. P.W.9 Dr.
Narendra Mohan Sharma appears holding postmortem
examination on the dead body and preparing the
report in that behalf which was marked Ext-3 during
trial. The witnesses who have been examined must
have been cited as a chargesheet witnesses and might
have been questioned by the investigating officer
before closure of investigation. From these
-5-
documents, we could gather that materials had been
found sufficient for putting the accused persons up
on trial.
7. The defence of appellants was of false
implication on account of the dispute for land in
between accused Dwarika Mahto, who was the father of
appellant Rit Lal Mahto and who was acquitted by the
learned trial Judge. The other appellants of
Cr.Appeal no.98 of 1988 pleaded false implication
for reasons best known to the informant.
8. The prosecution examined a total number
of ten witnesses in support of the charges, out of
whom P.W.5 Mahadeo Mahto was declared hostile though
the witness appears stating one important fact in
his examination-in-chief that when he reached at the
scene of occurrence, the wife of Lakhan Mahto, i.e.,
P.W.8 stated to him that appellant Rit Lal Mahto,
Jhupar Mahto(since dead)and 2-4 other persons had
murdered her husband Lakhan Mahto by a tangi. P.W.7
Angrej Mahto was tendered for cross-examination.
P.W.10 Suresh Prasad was a witness of formal nature
who proved the writings of a particular police
officer appearing on the FIR and this is how that
document was marked Ext-4. Other witnesses who also
fall in the same category of formal character was
-6-
P.W.6 Bhuneshwar Mahto who had signed the fardbeyan
as a witness to it besides signing the inquest
report too.
9. Out of remaining witnesses, except P.W.8
Paitri Devi, none of the witnesses, like, P.W.1
Sarju Mahto, P.W.2 Kaili Devi and P.W.4 Sukho Mahto
were witnesses to the real part of the occurrence
and they stated that when they reached the scene of
occurrence, they found appellant Rit Lal Mahto and
accused Jhupar Mahto(since dead) dragging the dead
body in an attempt to take it away. P.W.5 as just
pointed out did not state the above facts though
stated that P.W.8 had stated to him that it was Rit
Lal Mahto and others who had killed her husband. The
other witnesses like P.Ws.1, 2 and 4 have stated
that when they reached they also learnt from P.W.8
that it was appellant Rit Lal Mahto who had killed
her husband with a Kulhari.
10. While criticizing the judgments of the
learned lower court, it was contended by the learned
counsel appearing for appellants Bhola Mahto and
Parmeshwar Mahto that except P.W.8 none of the
witnesses like P.Ws 1, 2, 4 or 5 has stated that he
had seen any of the two appellants even dragging
away the dead body. It was contended that only P.W.8
-7-
stated that the accused persons started dragging
away the dead body so as to taking it away but her
evidence in paragraph 1 at page 28 of the paper book
is also not specific as she does not name any
particular accused in that connection and simply
implicated the accused persons generally. It was,
contended as such, that the two appellants, namely,
Bhola Mahto and Parmeshwar Mahto deserved to be
acquitted on account of not being named by any of
the witnesses as persons who had attempted to take
away the dead body by dragging it.
11. As regards Rit Lal Mahto, the learned
counsel appearing on his behalf contended that his
implication is by the evidence of solitary witness
P.W.8 and when the court considered her evidence in
paragraph 5 at page 29 of the paper book, what it
could find is that she woke up after hearing the
cries of her husband and, as such, she may not be an
eye witness to the assault part of occurrence. It
was further contended that the other witnesses did
not implicate the appellant Rit Lal Mahto by stating
that any of them had seen him giving the decisive
blow so as to killing the deceased Lakhan Mahto. It
was, lastly, contended that it was a case of
solitary blow and it may not be a case under Section
-8-
302 of the Penal Code and the facts may attract the
offence under Section 304 part II IPC.
12. Sushri Shashi Bala Verma, the learned
Additional Public Prosecutor, has contested the
contentions as regards the proof of charge against
appellant Rit Lal Mahto by submitting that the FIR
recites that the blow was given with full force.
P.W.8 supports her allegation contained in Ext-2 by
stating in her examination-in-chief as also in her
cross-examination that it was only appellant Rit Lal
Mahto who had assaulted her husband by a tangi and
the doctor who held the postmortem examination found
the corresponding injury which was the cause of
death. It was contended that the appellant Rit Lal
Mahto had the intention to kill the deceased and
that could be gathered from many circumstances
attending upon the facts of the case. Sushri Verma
submitted that it could never be a case under
Section 304 part II Penal Code and it could be out
and out an offence under Section 302 IPC.
13. The case of the prosecution is confined
to the solitary eye witness P.W.8 Paitri Devi who at
the relevant time was the wife of the deceased. She
appears having married another man after her husband
was killed by the accused persons, as per her
-9-
allegation. The fact that she married another man is
stated by P.W.2 Kaili Devi also who happens to be
the wife of the younger brother of the deceased
Lakhan Mahto and who could very well be supposed to
know the subsequent events which could have occurred
after murder of Lakhan Mahto. We are not concerned
much about that evidence of P.W.8. What we find
after considering the evidence of P.W.8 is that she
personally did not have any reason to falsely
implicate any person in a charge of murdering her
husband. Nothing was brought on the record of the
case by cross-examining P.W.8 or any of the ten
witnesses to indicate that P.W.8 could be deeply
motivated or interested in seeing that the charge
framed against appellant Rit Lal Mahto or against
any of the accused persons be proved by her
evidence on account of any particular reason. The
fairness of the witness could be gathered from one
line of her evidence in paragraph 6, which is the
cross-examination part of the evidence of P.W.8,
when she stated that her husband was assaulted only
by Rit Lal Mahto and by none of the other accused.
She further stated that the other accused persons
were simply standing near the place of occurrence.
This single line of evidence of P.W.8 brings the
– 10 –
quality of the witness to such a standard as not be
said to be tainted by any particular reason. No
witness could be as fair as we find P.W.8 to be.
For this reason, we place our implicit faith on the
evidence of P.W.8.
14. It is true that P.W.8 has stated that
all accused persons came together and some of them
were armed with some weapons also, but when we read
the evidence of P.W.8 in her examination-in-chief in
paragraph-1, what we find is that she had
generalized the allegation by giving a general type
of evidence that after Rit Lal Mahto had given a
blow with tangi so as to cutting and killing Lakhan
Mahto, the accused persons started dragging away the
dead body. She had not specified any particular
accused who was catching hold of the deceased so as
to dragging him away. This part of the story appears
narrated by other witnesses like P.Ws.1, 2 and 4
each of whom has stated that when he or she reached
at the scene of occurrence after picking up the
cries of the lady, they found two accused, namely,
Rit Lal Mahto and accused Jhupar Mahto(since dead)
dragging the dead body so as to taking it away. None
of them stated that they had seen any other accused
persons except the above two even standing or moving
– 11 –
along with the above two on or about the scene of
occurrence. What they have further stated is that
they heard P.W.8 stating that it was appellant Rit
Lal Mahto who had killed the deceased with a tangi.
Thus, we find that the complicity of the two
appellants, namely, Bhola Mahto and Parmeshwar Mahto
in dragging away the dead body of Lakhan Mahto after
he had been killed, appears not properly and
satisfactorily established.
15. Besides the evidence of P.W.8 Paitri
Devi, witnesses like P.Ws.1, 2, 4 and even 5-who was
declared hostile-have stated that P.W.8 was stating
that it was appellant Rit Lal Mahto who had killed
her husband with a weapon like tangi. We have
consulted the provisions of Section 6 of the
Evidence Act which makes the evidence of hearsay
admissible under a particular exceptional
circumstance as is stated to by that particular
provision of Evidence Act. That provision reads as
under:-
Relevancy of facts forming part
of same transaction.-Facts which,
though not in issue, are so
connected with a fact in issue as to
form part of the same transaction,
are relevant, whether they occurred
at the same time and place or at
different times and places.
For the purposes of the present discussion
– 12 –
we also want to refer to illustrations A appended to
Section 6 which reads as under:-
A is accused of the murder of B by
beating him. Whatever was said or done
by A or B or the by-standers at the
beating, or so shortly before or after
it as to form part of the transaction,
is a relevant fact.
16. On a composite reading of the main
provisions of Section 6 read with illustrations A of
the Evidence Act what may transpire is that any word
which was spoken by either the deceased or any one
who could be present at the place of occurrence when
the occurrence was being committed may be a relevant
fact. We could admit the evidence of P.Ws.1, 2, 4
and 5 under Section 6 of the Evidence Act when they
stated that P.W.8 was giving out that it was
appellant Rit Lal Mahto who had killed her husband
with a tangi/Kulhari. The evidence of the other
witnesses lends corroboration to evidence of P.W.8
and we find that the complicity of Rit Lal Mahto was
established beyond doubt.
17. This brings us to consider as to what
offence could be constituted under the facts of the
case. The allegation is that Rit Lal Mahto dealt a
forceful blow with tangi on the left temporal region
of the deceased. This statement appears in the FIR
but we are not concerned much about that as we have
– 13 –
the evidence of P.W.8 before us and she has stated
that the appellant Rit Lal Mahto dealt a tangi blow
on a temple of her husband and killed her. P.W.9 Dr.
Narendra Mohan Sharma who held the postmortem
examination on the dead body of Lakhan Mahto found
an incised wound on the left side of the face in
front of left ear. It was above and down- words
measuring 4 ½”x1″x bone, cutting left parietal,
temporal and upper part of mandible. We also find
after perusing the original document which was
marked Ext-3 that the meninges of the brain had also
been damaged on account of the above blow and the
above injury was the cause of death which was caused
by heavy sharp cutting weapon like an axe. The
evidence of doctor could, thus, give a clear picture
as to how heavy was the blow which was wielded by
appellant Rit Lal Mahto. While deciding to give the
blow, the appellant appears chosing one of the most
vital parts of the human body. Not only that, for
committing the offence the appellant has also chosen
the most unearthly hour of the day, i.e., the mid-
might when few souls could be awoke. This may give
an inkling as to the intent and knowledge of the man
who was wielding the blow. He did not want any one
to be a witness of the occurrence. He wanted his
– 14 –
blow to be so decisive, as not to leave any chance
for the deceased to survive
18. Considering these circumstances
together, we could not reach any other conclusion
than that the appellant was moving with a clear
intention that he had to kill the deceased Lakhan
Mahto. The evidence of P.W.8 indicates that after
the blow had been given by the appellant Rit Lal
Mahto, the deceased died instantaneously on the
spot.
19. Considering these aspects of the matter,
we are of the view that it could not be any other
offence than the offence of murder and the
contention of the learned counsel for the appellants
that the case could be one under Section 304 part II
of the IPC appears to us not acceptable.
20. After having discussed the evidence
available to us on the record of the case, we find
that the appeal of appellant Bhola Mahto and
Parmeshwar Mahto has to be allowed on account of
extending the benefit of doubt to the above named
two appellants. As regards appellant Rit Lal Mahto
his conviction under Section 302 of the Penal Code
appears properly recorded and we, accordingly,
dismiss his appeal, i.e., Cr.Appeal no.156 of 1988.
– 15 –
21. Cr.Appeal No.98 of 1988 is allowed in
the light of the above findings. Appellant Rit Lal
Mahto is on bail on account of being granted the
privilege by order dated 3.5.1989 passed in
Cr.Appeal No.156 of 1988. His bail bonds are
cancelled. He shall surrender to serve out his
sentence. As regards appellants Bhola Mahto and
Parmeshwar Mahto, they shall stand discharged from
the liabilities of their respective bail bonds on
account of being acquitted.
( Dharnidhar Jha, J. )
( Akhilesh Chandra,J. )
Patna High Court,
Dated, the 29th of
March,2010,
Brajesh Kumar/NAFR
