Jharkhand High Court
Hari Shankar Yadav vs The State Of Bihar (Now Jharkhand) on 16 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:19620-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 206 of 1996 (R)
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(Against the Judgment of conviction dated 08.10.1996 and order of sentence
dated 09.10.1996 passed by learned 4th Additional Sessions Judge, Palamau
at Daltonganj, in Sessions Trial No. 232 of 1991)
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1. Hari Shankar Yadav
2. Sheo Shankar Yadav
3. Sheo Nandan Yadav
4. Sheolok Yadav
All sons of Kodu Yadav, at and P.O. Jalim, P.S. Latehar, District
Palamau at Daltonganj.
... ... Appellants
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
With
Cr. Appeal (DB) No. 185 of 2020
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(Against the Judgment of conviction and order of sentence dated 19.12.2019
passed by learned Sessions Judge, Latehar in Sessions Trial No. 232A of
1991)
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Prasad Mahto @ Ram Prasad Mahto, aged about 69 years, son of late
Sukhdeo Mahto, resident of Village-Tikuliya, P.O. & P.S. Lawalong,
District-Chatra.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellant : Mr. A.K. Kashyap, Sr. Advocate
For the Respondent : Mr. Abhay Kr. Tiwari, APP
[Criminal Appeal No. 206 of 1996 (R)]
Mr. Manoj Kr. Mishra, APP
[Criminal Appeal No. 185 of 2020]
.....
th
C.A.V./Reserved on 10 June, 2025 Pronounced on 16 /07/2025
Per Sujit Narayan Prasad, J.:
1. The instant appeal being Criminal Appeal (DB) No. 206 of 1996 (R), under Section 374 (2) with Section 389 of the Code of Criminal Procedure, has been preferred against the Judgment of conviction dated 08.10.1996 and order of sentence dated 09.10.1996 passed by learned 4th Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 232 of 1991, whereby and whereunder, the appellants have been convicted and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of IPC and further sentenced to undergo rigorous imprisonment for ten years for the offence under Section 307/34 of IPC. Both the sentences have been directed to run concurrently.
So far as Criminal Appeal (DB) No. 185 of 2020 is concerned, under Section 374 (2) of the Code of Criminal Procedure, the same has been preferred against the Judgment of conviction and order of sentence dated 19.12.2019 passed by learned Sessions Judge, Latehar in Sessions Trial No. 232/A of 1991, whereby and whereunder, the appellant has been convicted and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of IPC along with fine of Rs.6,000/- and in default of payment of fine, he has further been sentenced to undergo simple imprisonment for six months and further sentenced to undergo rigorous imprisonment for 08 years along with fine of Rs.3,000/- and in default of payment of fine, he has further been sentenced to undergo simple imprisonment for two months for the offence under Section 307/34 of IPC. Both the sentences have been directed to run concurrently. Factual Matrix 2 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
2. The prosecution story in brief as per the allegation made in the fardbeyan by the informant, Ramjeet Mahto , read as under:
The informant, Ramjeet Mahto in his Fardbeyan recorded on 13.11.1989, at Sub-divisional Hospital Latehar, has stated that when he returned after grazing the cattle, he was informed by Kuleshwar Singh that his wife was weeping and screaming. On reaching his house, he saw his wife Bilaso Devi (P.W.-5) being carried on a scooter by Fakira Saw to Latehar hospital. She was badly injured and there were injuries on her head and other parts of body. He had further stated that she has been injured with sharp cutting weapon by someone with intention to kill. He could also know that his younger daughter Nitla Kumari was killed due to injuries on her neck by a sharp cutting weapon. He saw his daughter laying dead. He came along with the other for treatment of his wife. He could not say who killed his daughter and injured his wife and also could not say about the reason for the same. He had, however, said that he was sure that his step brother Sheo Shankar Mahto etc. were involved as he was having land dispute with them.
Earlier also, it has been alleged that they had put his house on fire for which he had lodged a complaint at the police station.
3. Accordingly, Latehar P.S. Case No. 114 dt. 13.11.1989 for the offences U/s 302, 326, 307 and 324 I.P.C against unknown has been registered. After investigation the police submitted charge sheet no. 48/90 dt. 31.07.90 against the accused Shiv Shankar Yadav, Hari Shankar Yadav, Shiv Nandan Yadav and Shivlok Yadav besides the absconding accused Krishna Mahto(since dead) and Prasad Mahto [the appellant of Criminal Appeal (DB) No. 185 of 3 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 2020], for the offences u/s 147, 148, 149, 302, 307, 326, 324 and 323 of the I.P.C.
4. The first information report which was drawn on the statement of the informant, was against unknown persons. Later on, on the statement made by Bilaso Devi, wife of the informant (P.W.-5) after more than one months of the date of occurrence, the appellants were directly named as accused persons.
5. The cognizance for the offences was taken on 18.08.1990 for the offences u/s 147, 148. 149, 302, 307, 326, 324 and 323 of the I.P.C.
6. Accordingly, the trial proceeded and the appellants of Criminal Appeal (DB) No. 206 of 1996 (R) were found guilty by the learned trial court for the offence under Section 302/34 and 307/34 of IPC and have been sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of IPC and further sentenced to undergo rigorous imprisonment for ten years for the offence under Section 307/34 of IPC.
7. Thereafter, the O.C., Latehar had apprehended the appellant of Criminal Appeal (DB) No. 185 of 2020 and was produced before the Addl. Sessions Judge-IV, Palamau on 07.05.2019 and remanded. The another accused Krishna Mahto was reportedly dead.
8. The learned trial court by taking note that earlier the rest chargesheet accused persons [appellants of Criminal Appeal (DB) No. 206 of 1996 (R)] had faced trial in connection with original S.T. 232/91 and were convicted vide Judgment dt. 08.10.1996 r/w the sentence dt. 09.10.1996 against which Cr. Appeal No. 206/96(R) is pending before the Hon'ble Court, the appellant 4 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 of Criminal Appeal (DB) No. 185 of 2020 after receipt of the record was produced through video conferencing on 06.07.2019 and the charges for the offences u/s 302 and 307 both r/w 34 of the I.P.C were framed against him which was read over and explained to accused in Hindi to which he pleaded not guilty and claimed trial.
9. Accordingly, the trial proceeded and the appellant of Criminal Appeal (DB) No. 185 of 2020 has been convicted and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of IPC along with fine of Rs.6,000/- and in default of payment of fine, he has further been sentenced to undergo simple imprisonment for six months and further sentenced to undergo rigorous imprisonment for 08 years along with fine of Rs.3,000/- and in default of payment of fine, he has further been sentenced to undergo simple imprisonment for two months for the offence under Section 307/34 of IPC. The aforesaid orders of conviction and sentence is under challenge herein.
Submission of the learned counsel for the Appellants:
10. Learned Senior counsel for the appellants has taken the following grounds for interfering with the finding recorded by the learned trial court in the impugned judgments:
(i) The prosecution has miserably failed to substantiate the charge even if the testimony of the entire prosecution witnesses will be taken into consideration together.
(ii) The learned trial court has relied emphatically upon the testimony of P.W.-5, namely, Bilaso Devi [P.W.-3 in Criminal Appeal (DB) No. 5 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 185 of 2020] who has been considered to be eye witness and based upon her testimony, the prosecution has been accepted by the learned trial court but if the testimony of P.W.-5, Bilaso Devi will be taken into consideration, she herself has not disclosed the name of the appellants of these Criminal Appeals to any other prosecution witnesses rather she had first time had taken the name of these appellants before the Court as it would be evident from testimony of P.W.3 namely Fakira Sao (in Cr. appeal 206 of 1996) who had specifically stated that when he was taking the victim Bilaso Devi to Hospital on his scooter, he enquired from her about the name of accused but she had stated that the persons who have committed the murder were dacoits and she has not identified any of them.
(iii) The ground has been taken that the learned trial court has considered the testimony of P.W.-5, Bilaso Devi to be an eye witness merely relying upon her testimony as recorded in the examination in chief leaving aside the statement of other prosecution witness as P.W.3 and P.W.2 (Cr. Appeal 206 of 1996) has specifically stated that victim Bilaso Devi was conscious when they were carried her to Hospital and when they asked her about the accused she had stated that the persons who have committed the murder were dacoits and she has not identified any of them.
(iv) The testimony of P.W.-2 and 3 of Criminal Appeal (DB) No. 206 of 1996 (R), namely, Sanjay Sao and Fakira Sao respectively have been discarded by the learned trial court wherein these witnesses have also 6 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 deposed that the P.W.-5 has disclosed to them that the attackers were dacoits and name of these appellants have not been disclosed to them.
(v) The argument has been advanced that the statement of P.W.-5, Bilaso Devi was recorded after lapse of 16-17 days, i.e., only for the purpose of maintaining the case since in the FIR, there is no reference of the name of these appellants alleging therein commission of murder.
(vi) It has also been submitted that the learned trial court has not considered the testimony of P.W.-3, Fakira Sao, wherein he has stated that while the P.W.-5, Bilaso Devi was carried to the hospital, the husband, namely, Ramjeet Mahto has not come and at that time, P.W.- 5, Bilaso Devi was fully conscious but the name of these appellants has not been disclosed.
The argument has been advanced that the P.W.-5, Bilaso Devi in place has said that she became senseless but if the testimony of P.W.-2, Sanjay Sao and P.W.-3, Fakira Sao will be taken into consideration then it would be evident that the P.W.-5, Bilaso Devi had not become unconscious immediately after seeing the dead body of her daughter rather she had been carried to hospital by the P.W.-2, Sanjay Sao and P.W.-3, Fakira Sao over scooter and at that time, the P.W.-5, Bilsao Devi was fully conscious and even she was conscious while getting admitted in the hospital as would be evident from the testimony of P.W.-2, Sanjay Sao and P.W.-3, Fakira Sao.
(vii) So far as the appellant of Criminal Appeal (DB) No. 185 of 2020 is concerned, the learned senior counsel for the appellants has argued 7 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 that if the testimony which has been recorded of P.W.-3, Bilaso Devi in Criminal Appeal (DB) No. 185 of 2020 [P.W.-5 in Criminal Appeal (DB) No. 206 of 1996 (R)], will be taken into consideration, she has only disclosed the name of the present appellant [appellant of Criminal Appeal (DB) No. 185 of 2020] without disclosing any attributability said to be committed by the appellant of Criminal Appeal (DB) No. 185 of 2020.
(viii) It has been contended that the conviction of the appellant of Criminal Appeal (DB) No. 185 of 2020 is with the aid of Section 34 of IPC but it is settled position of law that the conviction if passed by taking the aid of Section 34 of IPC, the specific attributability is required to be there and merely on the basis of the presence of one or the other, there cannot be any conviction by taking aid of Section 34 of IPC. The aforesaid aspect of the matter has not been taken into consideration by the learned trial court.
(ix) It has been contended that the name of the appellant of Criminal Appeal (DB) No. 185 of 2020 has been taken by the P.W.-3 of Criminal Appeal (DB) No. 185 of 2020 [P.W.-5 in Criminal Appeal (DB) No. 206 of 1996 (R)] but without any specific allegation of commission of murder. Hence, merely on the basis of presumption and on the ground that the said appellant was present at the place of occurrence, there cannot be any conviction either under Section 302 or Section 307 of IPC taking the aid of Section 34 of IPC.
8 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
11. The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that the learned trial court has not taken into consideration of the aforesaid facts, as such, both the impugned judgments require interference, hence not sustainable in the eyes of law. Submission of learned counsel for the Respondent-State:
12. While defending the judgment of conviction and sentence, the learned Additional Public Prosecutors appearing for the State in both the instant appeals have raised the following arguments in response to the grounds raised by the learned counsel for the appellant that:
(i) The P.W.- 5, Bilaso Devi has rightly been considered to be an eye witnesses since she has narrated the entire story and has fully supported the prosecution version if her version will be taken into entirety as recorded in the examination-in-chief
(ii) The statement of P.W.2 and 3 is not fit to be acceptable as P.W.2 had stated that while they were crossing the river where the scooter was stopped due to mechanical defects which was corrected by them and at that time the victim told them about the causing of the incident by some unknown dacoits but it strange enough that if the victim was in conscious state of mind then why she had not stated the same fact to these witnesses at her residence rather she had stated this fact while they were crossing the river.
(iii) Since informant was not present at the place of occurrence and his wife i.e surviving victim was not in conscious state therefore while giving the fardbeyan he had not taken the name of these appellants as 9 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 accused , as such the veracity of prosecution case cannot be doubted on this score rather all the witnesses had supported the circumstances of the occurrence.
13. The learned Additional Public Prosecutors appearing for the respondent- State, based upon the aforesaid premise, has submitted that the impugned judgments do not suffer from any error, hence the instant appeals are fit to be dismissed.
Analysis
14. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment.
15. We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits appended therewith.
16. Learned trial court, based upon the testimonies of witnesses, has passed the judgment of conviction and has convicted the appellants under Section 302/34 and 307/34 of Indian Penal Code and sentenced them for maximum punishment of rigorous imprisonment for life years.
17. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the testimonies of witnesses which have been recorded by learned trial Court. The learned trial court during the trial has altogether examined nine witnesses in Criminal Appeal (DB) No. 206 of 1996 (R) and six witnesses in Criminal Appeal (DB) No. 185 of 2020 and testimonies of the same are required to referred herein.
10 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 Testimonies of the witnesses recorded in Criminal Appeal (DB) No. 206 of 1996 (R):
18. P.W.1 Md. Mustakim, an advocate clerk was formal witness proving first information report.
19. P.W.2 Sanjay Sao has deposed that the incident happened one and a half years ago but he unable to recall the exact date or month. He had testified that at the time of the incident, he was at home. It happened around 6:00-
6:30 in the evening. Fakira Sao and one police constable came to his house. The police informed him about the incident, thereafter he went to the spot where a girl had been murdered, Sanju's mother (informant's wife) was sitting there near the road. Sanju's mother was brought to the hospital on a scooter with Fakira Sahu. Sanju's mother was injured and was admitted to the hospital and she was not unconscious. He had further deposed that While being brought Sanju's mother to the hospital on the scooter, the scooter broke down near the river and Sanju's mother was dropped into the river there. After that, two of us crossed the river on the scooter. He had further testified that at that time, he asked Sanju's mother who had killed, then She said that the dacoits had killed everyone.
20. In the cross-examination he had stated that all the accused are the step brothers of informant and accused Shiv Shankar Yadav live in the house wherein alleged occurrence was caused. The drain water of Mahendra Sao house goes into the courtyard of the Kodu Mahato, due to which there are constant quarrels and disputes between the two and a case is also going on.
11 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
21. He further testified that when they reached the hospital, Ramjeet Mahato (informant) also reached the hospital. Ramjeet Mahato himself supported his wife and made her sit on the stairs of the hospital and took her to the bed. He had further testified that at that time also Ramjeet's wife(injured victim) was crying and telling him that the dacoit had killed the daughter and him too. This witness further testified that accused Shivshankar also reached the hospital on Awadhesh's scooter and when the doctor prescribed prescription, he bought the medicine himself.
22. P.W.3 Fakira Sao had deposed that he was at his home at the time of the incident. It was 6:00 in the evening. He heard Ramjeet Mahato's wife crying. He went there and saw that Ramjeet Mahato's wife was injured. He had further deposed that he informed the police station and he and Sanjay brought the injured to Latehar hospital. He specifically stated that the injured (Ramjeet Mahato's/informant's wife) was not unconscious. He further deposed that he found that Ramjeet Mahato's daughter had been murdered. Additional public prosecutor had drawn attention of this witness to the statement recorded under 161 Cr.P.C., then he denied that he told the police that the criminals had badly injured Mahato's wife by hitting her with a sharp weapon, due to which she was unconscious since the beginning.
23. He further testified in the cross-examination that on hearing the screams of wife of Ramjeet Mahato he reached the spot, and body of wife of informant was soaked in blood, on asking she said that her daughter had been killed by dacoits to whom she did not recognize. He further stated that the injured victim has crossed the river on her own foot.
12 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
24. P.W.4 Dr. Sidhnath is the doctor who had conducted the post-mortem examination upon the dead of informant's daughter namely Nitla Kumari.The dead body was brought and identified by Constable No.972 Anirudh Singh and Chowkidar 5/10 Rameshwar Manjhi. The dead body was brought at postmortem house on 14.11.1989 at 08:30 AM. Postmortem was conducted on 14.11.1989 at 08:30 AM.
From the PM report it appears rigor mortis present in all the four limbs. (A) The following antemortem injuries were found :
External Injury
(i) Cervical vertebrae 3rd and 4th cut and fracture were due to sharp cut multiple three injuries on the neck. Membrane divided and damaged in the neck due to injury. Spinal cord was also cut through and through due to the same injury.
(ii) On examination at larynx and trachea the following 2 injuries were found: Both larynx and trachea were cut through and through due to same injury.
(iii) Almost all the blood vessels - carotid and vertibral cut in the cervical region.
(iv) Heart chambers were found empty.
(v) Spleen was found contracted and shrunken due to excessive
haemorrhage through the injury of neck.
(B) Antemortem injury :
13 Cr. Appeal (DB) No. 206 of 1996 (R)
with
Cr. Appeal (DB) No. 185 of 2020
Three in number with reasonably sharp injury and heavy stroke on the neck dividing muscles, blood vessels, cervical vertebrae 3 rd and 4th, trachea and pharynx leaving the skin and anterior cervical muscles intact.
(C) Opinion :
The injuries are caused by sharp cutting instrument. Stroked heavily from behind and right side. Three strokes were applied by same instrument which may be sword also.
Cause of death - Death due to hemorrhage and shock due to injuries described above. Time, elapsed since death was - Within 24 hours.
25. P.W.5 Bilaso Devi is the informant's wife and injured. She had testified that this incident happened two and a quarter years ago. It was Monday, the day of Kartik Purnima and she had gone to harvest paddy with her daughter Nitla(deceased). Shankar Mahato was also harvesting paddy from his field there. Shankar Mahato said that right now they are harvesting paddy, in the evening throat will cut. She had further testified that in the evening, she came home and made the girl sit at home and went to fetch water. When she returned with water, she saw that her daughter was struggling and accused Shiv Shankar jumped out of her house with a sword covered in blood. She had further testified that when she entered in to house then she saw the accused Harishankar,Shivlok, Shivnandan, Krishna Mahato and Prasad Mahato hiding in the house. They all had Gandasha and Dabiya in their hands. She had further testified that all the accused started hitting her and injured her by hitting her on the head, left cheek, right shoulder and right hand. She further deposed that after hitting her, everyone ran away, 14 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 thereafter she fell down and somehow got out of the house, then became unconscious and after that who took her to the hospital, she does not know. She had further stated that Krishna and Prasad Mahato were brother-in-law of accused Shiv Shankar.
26. In the cross-examination she had stated that after the beating, she somehow came out of the house and fell unconscious but she had not stated that after how much time she fell unconscious and she further stated that she fell unconscious after an hour or half an hour. She had stated that she regained consciousness after 17-18 days in Bariatu hospital. She had further stated that after being discharged from the hospital, she had gone to her maternal home and the police did not go to take her statement at the hospital. She had testified that she had given statement to the police at her maika and after two-four days of giving the said statement to the police, her statement was recorded in the court.
27. P.W.6 Ramjeet Mahato is the husband of P.W. 5 Bilaso Devi who is injured eyewitness and FIR was instituted on the basis of his Fardbeyan. He had stated that this incident is of Monday, two and a half years ago, in the month of Agahan, when he returns from the jungle, he did not see the family. Phuleshwar said that there was a ruckus in his house., He had further testified that he found his daughter dead inside the house and he also saw cuts on his wife's head and body. He had stated the four accused persons are his step brothers, and he had doubt on them as there is a dispute over land and even before this incident accused had filed a case of fire.
15 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
28. He had deposed in the cross-examination that at the time Phuleshwar had told was 6 o'clock, it was the evening and he saw his wife lying on Fakira's scooter and from a distance he saw his wife's wound in the hospital. He had further stated that Shiv Shankar had not come to the hospital, he first saw his wife's wound in the hospital, the police came to the hospital and took his statement.
29. P.W.7 Sanju Kumari daughter of the informant had deposed that this incident was happened two and half years ago. It was the month of Aghan. It was Monday at 6:00 pm. She had testified that at that time she was grinding spices in her house and at that time she heard the sound of someone on the north side of the house then she lit a lamp and looked there but there was nothing at home. She further testified that her sister Nitla(deceased) was inside the house and after grinding the spices, she went to the camp of the police to cook food wherein she has been informed about the alleged occurrence and when she reached the house, she saw her mother injured and bleeding. After that, she went inside the house and saw Nitla dead.
30. She had further testified that when she was grinding spices in the house, she heard the sound coming from the field of Rahar, which was adjacent to the wall of my house thereafter she came out with the lamp and looking around, but she could not see anything because it was very dark. There was only my sister Nitla (deceased) in the house and her mother had gone out to fetch water.
31. P.W.8 Dr. Bihwal Prasad Bhagat he had examined Bilso Devi (injured victim) on 13.11.1989 and found following injuries:
16 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 a. Incised wound on the middle of the head - 8" x 2" X 2" in depth, cutting the skull bone b. Incised wound on the left shoulder - 4" x 5" X 3", cutting the acetabulum c. Incised wound on the left cheek cutting the mandible bone.
d. Incised wound on right arm - 3" x 2" X 1", e. Incised wound on right knee - 1" x ½" X ½ "
This witness in his cross-examination had categorically stated that injured was conscious and talking. Further he had stated that he is saying on the basis of his memory. He further stated that when a patient is brought in unconscious state then we mention this fact at the bottom of the injury report.
32. P.W.9 Balmiki Prasad Singh, the investigating officer and he had deposed that on receiving information from the sub-divisional hospital, he came to the sub-divisional hospital where the statement of Ramjeet Mahato informant was recorded. The statement was read out and read out correctly. Ramjeet Mahato put his left thumb impression. This is the statement which is in his handwriting and signature, to be marked on the exhibit. He had deposed that he sent it to the police station for investigation and thereafter, prepared the documents for the injury report of the injured and gave it to the doctor. Recorded the statement of Fakir Shah present in the hospital. Left for the scene of incident. Prepared the death review report of the deceased Nitla Kumari at the scene of incident. This is the written copy of the death review report which is in his handwriting and it was prepared along with the 17 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 original copy with carbon. Mark exhibit -5. He further testified that Blood stained soil was seized from the incident spot, seizure list was prepared and this list is in his handwriting and the witnesses also signed in front of him. In para 15 of the cross examination, he had deposed that police have been informed about the alleged occurrence from injured Bilaso Devi but the name of the assailant has not been divulged.
Testimonies of the witnesses recorded in Criminal Appeal (DB) No. 185 of 2020 are as under:
33. P.W.-1 Fakira Sao stated that at about 07:00 P.M on hearing cries he had gone to the house of Bilaso Devi who was injured. He intimated the matter to the Police Chauki, but they scolded him. After some time, he again went there, where more persons were present and saw the said Bilaso Devi injured. She had received injury by some weapon. He asked regarding it but she did not disclose as to how she received injury. Bilaso Devi was outside her house. When he entered her house, he could not found her daughter Nitla Kumari. On the next day, it was heard that she was killed. He had seen the dead body having slit neck, but cannot say how she was killed. He further stated that the informant Ramjeet Yadav is dead. Another daughter Kamali Kumari is also dead.
34. P.W.2 Sanjay Kumar stated, that on hulla he went to the house of Ramjeet at about 08:00 P.M and found wife of Ramjeet in injured condition. She was partly unconscious. She was called to hospital where she was treated then he returned. He cannot say how injuries were caused.
35. P.W.3 Bilaso Devi, the injured, where she stated that the incident happened 30 years back. She returned after harvesting paddy. Her daughter Niki was
18 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 preparing for food. She had gone to fetch water and when she returned could found that Shiv Shankar, Hari Shankar, Shivlok, Shivnandan (all convicted) and Prasad [the present appellant of Criminal Appeal (DB) No. 185 of 2020] are hiding in her house when she entered the house, they started charging upon her from behind. She got injury on her left shoulder, left jaw, left head, right hand arm, right knee. She claimed that she was assaulted by 'Dabiya' (A sharp weapon). Her daughter was killed near the stove. Her neck was slit. After committing the offence, the accused persons fled away. While she was crying P.W.1, Fakira Sao came but she became senseless. After about 04 days she got her senses at Bariyatu hospital. According to her the genesis that she allegedly had purchased the lands of her Bhaisur, Lal Jee Yadav for which the accused Shiv Shankar had come to assault her not to purchase the land but had purchased it and only because of it the incident happened. She claims that the accused Shiv Shankar, Hari Shankar, Shivlok, Shivnandan are their step brother-in-law (Dewar) and Prasad [the present appellant of Criminal Appeal (DB) No. 185 of 2020] is the brother-in-law of Shiv Shankar. Regarding identification she claimed that the accused might be Prasad but much time has elapsed, there are changes in the face. She also claimed that after the occurrence she is living at her parents' house. In cross-examination she stated that the Sala of Shiv Shankar resides at Tikuliya. The accused Shiv Shankar, Hari Shankar, Shivlok, Shivnandan [the appellants of Criminal Appeal (DB) No. 206 of 1996 (R)] would have been benefited by her assault. Her daughter was killed before she returned with water. She further asserts that after the occurrence her another daughter was also killed. The 19 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 said killing was also because of land dispute in which the son of Chalitar Thakur and Birbal were named. She is not recollecting that after how many days of occurrence the police had inquired her. She also cannot say as to after which time she was brought to hospital. She was treated at Bariyatu Hospital. She also stated that she regained senses after about four days. She cannot say if she had named any one in her earlier statement. She further states that in her previous evidence she has stated that she had purchased land but was not given share, but is not recollecting that had stated regarding enmity with father-in-law named Kadu Mahto.
36. P.W.4 Sanju Devi, the daughter of P.W.3, stated that she had returned after harvesting paddy along with her mother and younger sister. She had gone for 'Grinding Spices' at the house of Hawaldar Saheb. At that time, she was informed by one co-villager Thakurchand to return to her house, her mother may be dead meet her. She went running and found her mother lying outside the house. She was having injury on head, jaw, left shoulder, right hand and knee and it appears that she was assaulted by some weapon. She called her mother thrice but she was not responding. She had seen Shiv Shankar, Hari Shankar, Shivlok, Shiv Nandan and Prasad are coming out from their house when she entered the house then found her sister lying dead. Her neck was slit, head broken. The police have come in the night and took the dead body. Her mother was also taken for treatment when she recovered sense then she had disclosed all the five accused persons. She has recorded her statement before the Police. She had identified the accused in dock. She also stated that the incident happened because of land dispute. She also stated that the accused is Sala of Shiv Shankar. She admits that 20 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 she had earlier been examined in this case but it is not a fact that in that evidence she has not disclosed the name of all accused persons. She also disputes the suggestion that in that evidence she has not disclosed if she had seen the accused coming out from the house. She disputes that in her earlier statement she had stated that when she returned, she could not meet her mother. The mother had gone to hospital and she has not come to meet her mother. She also disputes that she had gone to her Nanihal to meet the mother about a month later along with her aunt and no villagers accompanied her is also disputed.
37. P.W.5 Dr. Jamil Ahmed, Medical Officer, Sadar Hospital, Latehar. He deposed that on dated 14.11.1989, he was doing his Post Graduation at R.M.C.H., Ranchi. He presently is posted as Medical Officer, District Hospital, Latehar since 2016. He had no opportunity to work with the Dr. Sidhnath who had conducted the postmortem dated 14.11.1989 as written and signed by the said Dr. Sidhnath. The postmortem report will show that the said Dr. Sidhnath had conducted the autopsy on the dead body of Nitla Kumari, aged about 06 years, Female child, D/o Ramjeet Mahto. The dead body was brought and identified by Constable No.972 Anirudh Singh and Chowkidar 3/10 Rameshwar Manjhi. The dead body was brought at postmortem house on 14.11.1989 at 08:30 AM. Postmortem was conducted on 14.11.1989 at 08:30 AM.
From the PM report it appears rigor mortis present in all the four limbs. (A) The following antemortem injuries were found :
External Injury 21 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
(vi) Cervical 3rd and 4th vertebrae cut and fracture due to sharp cut multiple three injuries. Membrane divided and damaged in the cervical region due to injury. Spinal cord cut through and through.
(vii) Larynx and trachea cut through and through.
(viii) Almost all the blood vessels - carotid and vertebral cut in the cervical region.
(D) Antemortem injury :
Three in number with reasonably sharp injury and heavy stroke on the neck dividing muscles, blood vessels, cervical vertebrae 3rd and 4th, trachea and pharynx leaving the skin and anterior cervical muscles intact.
(E) Opinion :
The injuries are caused from sharp cutting instrument. Stroke heavily from behind and right side. Three strokes with the same instrument has been applied cutting all blood vessels cervical vertebrae 3 rd and 4th and spinal cord, trachea pharynx leaving only skin and anterior cervical muscles intact.
Cause of death - Death due to hemorrhage and shock due to injuries described above.
Time elapsed since death - Within 24 hours.
(2) On identification, the document is marked exhibit1. (3) He also endorses the opinion taken by Dr. Sidhnath, and states that he also could have been of the same view if he would have conducted the postmortem.
22 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 (4) One injury report is put up before him by the Ld. P.P. I/c it will show that one patient Bilaso Devi, W/o Ramjeet Mahto has been treated by the Doctor and has found the following injuries
(i) Incised wound on the middle of head - 8" x 2" X 2", cutting the skull bone - grievous, sharp cutting instrument.
(ii) Incised wound on left shoulder - 4" x 5" X 3", cutting acetabulam - grievous, sharp cutting instrument.
(iii) Incised wound on left cheek cutting the mandible by sharp cutting instrument - grievous.
(iv) Incised wound on right arm - 3" x 2" X 1", sharp cutting instrument - simple.
(v) Incised wound on right knee - 1" x ½" X ½ ", sharp cutting instrument.
Age within 06 hours.
I/M - One mole on the right clavicle.
(5) On identification, the document is marked exhibit2. (6) He also endorsed the opinion taken by doctor, if he would have seen and examined the patient regarding the injuries and its nature.
38. P.W.6 Firoz Imam, Head clerk, Civil court, Latehar has proved the custody of the F.I.R and the inquest report in reference to Latehar P.S. case No.114/89 and on proof of custody the documents are marked Ext. 3 & 4.
39. It needs to refer herein that the appellants of Criminal Appeal (DB) No. 206 of 1996 (R) have been apprehended immediately after the institution of the 23 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 prosecution case but the appellant of Criminal Appeal (DB) No. 185 of 2020 has not been apprehended rather he has absconded and after lapse of about more than 30 years, he has been apprehended and thereafter, the trial against him has commenced, meaning thereby, the trial had been split up in between the appellants of both the cases.
40. It is further relevant to refer herein that the prosecution has examined altogether nine witnesses in Sessions Trial No. 232 of 1991, subject matter of Criminal Appeal (DB) No. 206 of 1996 (R) wherein P.W.-5, Bilaso Devi has been considered to be an eye witness which has been taken note by the learned trial court in the impugned judgment.
41. The said Bilaso Devi had been examined as P.W.-3 in Sessions Trial No. 232A of 1991, subject matter of Criminal Appeal (DB) No. 185 of 2020 and P.W.-2 and P.W.-3 of Criminal Appeal (DB) No. 206 of 1996 (R) have been examined as P.W.-2 and P.W.-1 respectively in Criminal Appeal (DB) No. 185 of 2020.
42. The informant Ramjeet Mahto had died the day when the trial in connection with Sessions Trial No. 232A of 1991 had commenced, therefore, only six witnesses have been examined in the said sessions trial, subject matter of Criminal Appeal (DB) No. 185 of 2020.
43. The evidence of P.W.-5, P.W.-2 and P.W.-3 of Sessions Trial No. 232 of 1991 have been taken note herein and the testimony of said P.W.-5 of Criminal Appeal (DB) No. 206 of 1996 (R) who has been examined as P.W.- 3 in Sessions Trial No. 232A of 1991 subject matter of Criminal Appeal (DB) No. 185 of 2020 has also been taken note herein.
24 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
44. This Court, after having considered the testimony of witnesses is now proceeding to consider the argument advanced by learned counsel for the appellants.
45. The ground has been agitated on behalf of appellants that the learned trial court has relied emphatically upon the testimony of P.W.-5, namely, Bilaso Devi [P.W.-3 in Criminal Appeal (DB) No. 185 of 2020] who has been considered to be an eye-witness and based upon her testimony, the prosecution case has been accepted by the learned trial court but if the testimony of P.W.-5, Bilaso Devi will be taken into consideration, she herself has not disclosed the name of the appellants of these Criminal Appeals to any other prosecution witnesses rather she had first time had taken the name of these appellants before the Court as it would be evident from testimony of P.W.3 namely Fakira Sao (in Cr. appeal 206 of 1996) who had specifically stated that when he was taking the victim Bilaso Devi to Hospital on his scooter, then she had stated that the persons who have committed the murder were dacoits and she has not identified any of them.
46. It has further been contended that learned trial court has considered the testimony of P.W.-5, Bilaso Devi to be an eye witness merely relying upon her testimony as recorded in the examination in chief, leaving aside the statement of other prosecution witness as P.W.3 and P.W.2 (Cr. Appeal 206 of 1996) who have specifically stated that victim Bilaso Devi was conscious when they were carried her to Hospital and when they asked him about the accused she had stated that the persons who have committed the murder were dacoits and she has not identified any of them.
25 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
47. Per contra the learned APP for the state has contended that the P.W.- 5, Bilaso Devi has rightly been considered to be an eye witnesses since she has narrated the entire story and has fully supported the prosecution version if her version will be taken into entirety as recorded in the examination-in- chief.
48. Further it has been contended that The statement of P.W.2 and 3 is not fit to be acceptable as P.W.2 had stated that while they were crossing the river where the scooter was stopped due to mechanical defects which was corrected by them and at that time the victim told them about the causing of the incident by some unknown dacoits but it strange enough that if the victim was in conscious state of mind then why she had not stated the same fact to these witnesses at her residence rather she had stated this fact while they were crossing the river.
49. In the backdrop of the arguments, of the learned counsel for the parties, and in the light of discussion of the testimonies of the witnesses this Court in the instant case is to consider following issues: -
(i) Whether the material as has come in course of trial is sufficient to attract the offence committed under alleged Sections of the Indian Penal Code?
(ii) Whether the only sole testimony of an eyewitness is sufficient enough to prove the alleged charges against the appellants beyond all reasonable doubt.
(iii) Whether the appellants are entitled for acquittal in absence of other cogent evidences?
26 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
50. Since all the aforesaid issues are inextricably interlinked, the same are being decided hereinbelow by considering them together.
51. This Court, in order to appreciate the submissions advanced on behalf of the appellants with respect to the culpability of the appellants, for the alleged offence vis-à-vis the evidences adduced on behalf of the parties, and further answering the issues as referred above, deems it fit and proper to discuss settled position of law which has been settled by the Hon'ble Apex Court.
52. The learned counsel for the appellants has contended that the learned trial court even in absence of corroboration of the testimony of P.W.5 who is self-proclaimed sole eyewitness has convicted the appellants which is bad in the eyes of law.
53. In the aforesaid context, it is settled proposition of law that the judgment of conviction can be passed on the basis of the testimony of sole eyewitness but the testimony of said witness should be trustworthy and inspire confidence in the mind of the Court.
54. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise, reference in this regard may be taken by the judgment rendered by Hon'ble Apex Court in the case 27 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 of Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 paragraphs 30 to 34 of the said judgment are being referred hereunder as :-
"30. Shri Bagga has also submitted that there was sole testimony of Sujit Mondal, PW 1, and the rest i.e. depositions of PW 2 to PW 8, could be treated merely as hearsay. The same cannot be relied upon for conviction.
31. In Sunil Kumar v. State (Govt. of NCT of Delhi) this Court repelled a similar submission observing that: (SCC p. 371, para 9) "9. ... as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration."
In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
32. In Namdeo v. State of Maharashtra this Court reiterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
33. In Kunju v. State of T.N., a similar view has been reiterated placing reliance on various earlier judgments of this Court including Jagdish Prasad v. State of M.P. and Vadivelu Thevar v. State of Madras.
34. Thus, in view of the above, the bald contention made by Shri Bagga that no conviction can be recorded in case of a solitary eyewitness has no force and is negatived accordingly."
55. Likewise, the Hon'ble Apex Court in the case of Kuriya and another vs. State of Rajasthan, (2012) 10 SCC 433 has held as under: -
28 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 " 33. ---The Court has stated the principle that, as a general rule, the Court can and may act on the testimony of a single eyewitness provided he is wholly reliable and base the conviction on the testimony of such sole eyewitness. There is no legal impediment in convicting a person on the sole testimony of a single witness."
56. The Hon'ble Apex Court in the case of Kalu @ Amit vs. State of Haryana, (2012) 8 SCC 34 held as under:-
"11. We find no infirmity in the judgment of the High Court which has rightly affirmed the trial court's view. It is true that the accused have managed to win over the complainant PW 4 Karambir Yadav, but the evidence of PW 5 Ram Chander Yadav bears out the prosecution case. It is well settled that conviction can be based on the evidence of a sole eyewitness if his evidence inspires confidence. This witness has meticulously narrated the incident and supported the prosecution case. We find him to be a reliable witness."
57. The Hon'ble Apex Court in case of Sheelam Ramesh v. State of A.P., (1999) 8 SCC 369 in Para -18 held as follows:-
"18. According to learned counsel for the accused appellants, though PW 3 has deposed that 10-15 persons were in the vicinity at the time of occurrence, no independent witness was examined by the prosecution. There is nothing on evidence to show that there was any other eyewitness to the occurrence. Having examined all the eyewitnesses even if other persons present nearby were not examined, the evidence of the eyewitnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence."
58. It is thus evident from the aforesaid settled position of law that the judgment of conviction can be passed on the basis of the testimony of sole eyewitness but if there are doubts about the testimony of the such sole eyewitness, the courts will insist on corroboration and the test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise, 29 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
59. At this juncture this Court thinks fit to revisit the testimony of the witnesses particularly the injured eyewitness P.W.5 in the backdrop of aforesaid settled legal proposition.
60. Admittedly herein the case of the prosecution is based upon the testimony of injured eye-witness P.W.5 wife of the informant. In her testimony she has testified that in the evening, she came home and made the girl sit at home and went to fetch water. When she returned with water, she saw that her daughter was wriggling and accused Shiv Shankar jumped out of her house with a sword stained in blood. She had further testified that when she entered in to house then she saw the accused Harishankar, Shivlok, Shivnandan, Krishna Mahato and Prasad Mahato hiding in the house. They all had Gandasha and Dabiya in their hands. She had further testified that all the accused started hitting her and injured her by hitting her on the head, left cheek, right shoulder and right hand. She further deposed that after hitting her, everyone ran away, thereafter she fell down and somehow got out of the house, then became unconscious and after that who took her to the hospital, she does not know.
61. At this juncture it would be apt to refer herein the relevant part of the testimony of P.W.2 Sanjay Sao who had taken the injured victim to the hospital for treatment. In his testimony he had stated that Manju's mother (Injured Eyewitness and wife of the informant) was brought to the hospital on a scooter with Fakira Sao. Manju's mother was injured and was admitted to the hospital and she was not unconscious. He had further deposed that while being brought Sanju's mother to the hospital on the scooter, the scooter broke down near the river and Sanju's mother was dropped into the 30 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 river there. After that, two of us crossed the river on the scooter. He had further testified that at that time, he asked Manju's mother who had killed, then She said that the dacoits had killed everyone.
62. He further testified in the cross examination that when they reached the hospital, Ramjeet Mahato (informant) also reached the hospital. Ramjeet Mahato himself supported his wife and made her sit on the stairs of the hospital and took her to the bed. He had further testified that at that time also Ramjeet's wife (injured victim) was crying and telling him that the dacoit had killed the daughter and him too. This witness further testified that accused Shivshankar also reached the hospital on Awadhesh's scooter and when the doctor prescribed prescription, he bought the medicine himself.
63. Thus, it is apparent from the testimony aforesaid that the injured eye-witness was not unconscious rather she was fully conscious and when she was asked about the accused/assailants she had stated that the dacoits had killed everyone. It needs to refer herein that admittedly all the accused persons were known to injured eyewitness (P.W.5) since they are the step brother and relative of her husband then in such scenario question arises herein that why the injured eyewitness (P.W.5) had not taken the name of any accused persons rather she had stated that unknown Dacoits has caused the alleged occurrence.
64. Further it is evident from the testimony of P.W.2 that at the hospital Ramjeet's wife (injured victim) was crying and telling him that the dacoit had killed the daughter and him too. Therefore, it has well been established 31 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 that injured eyewitness was fully conscious when she reached at the hospital along with P.W.2 and 3.
65. Further the testimony of P.W.2 has fully been substantiated by the testimony of the P.W.3 Fakira Sao on whose scooter the injured eyewitness was carried to the hospital. Admittedly it has come in the testimony of the P.W.6 informant that his injured wife was carried to hospital by Fakira Sao on the scooter along with P.W.3. This witness has testified that he and Sanjay (P.W.2) brought the injured (P.W.5) to Latehar hospital. He specifically stated that the injured (Ranjit Mahato's/informant's wife) was not unconscious
66. He further testified in the cross-examination that on hearing the screams of wife of Ranjeet Mahato(informant) he reached the spot, and body of wife of informant was soaked in blood and on asking she said that she had been assaulted by dacoits to whom she did not recognize. He further stated that the injured victim (P.W.5) has crossed the river on her own foot.
67. Thus, from the aforesaid testimony of this witness it is apparent that injured victim has not taken the name of accused appellants and further she was fully conscious when she was carried to hospital by P.W.2 and P.W.3.
68. Further at this juncture it would be apt to discuss the relevant paragraph of the testimony of P.W.8 the doctor who had examined the injured victim (P.W.5). In his cross-examination he had categorically testified that injured victim was in her sense and talking, when he had examined her. Further it is evident from the testimony of P.W.9 the investigating officer wherein at paragraph 15 he had stated that police have been informed about the alleged 32 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 occurrence from injured Bilaso Devi but the name of the assailant has not been divulged.
69. Thus, from the aforesaid it is evident that testimony of so-called injured eyewitness has not been corroborated by the other prosecution witness available on record. It needs to refer herein that P.W.2 and 3 is the independent witnesses and it is hard to say that they have given their testimony with an ulterior motive. Further they have not been declared hostile/tendered by the prosecution rather their testimony has been supported by the testimony of the informant (P.W.6).
70. The law is settled that evidence of an eye-witness should be of very sterling quality and caliber and it should not only instil confidence in the court to accept the same but it should also be a version of such nature that can be accepted at its face value. The Hon'ble Apex Court in the case of Rai Sandeep @ Deepu alias Deepu V. State (NCT of Delhi) (2012) 8 SCC 21 has observed that the "sterling witness" should be of very high quality and Caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. What would be relevant is the truthfulness of the statement made by such a witness. It should be natural and consistent with the case of the prosecution of the accused. The relevant paragraph of the aforesaid Judgment is being quoted as under:
"22. In our considered opinion, the "sterling witness" should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation.
33 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve 34 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 the other supporting materials for holding the offender guilty of the charge alleged."
71. Thus, on the basis of the discussion made herein above this Court is of the considered view that testimony of the victim is not fully reliable and prosecution has failed in its duty to prove the charges against the appellants beyond reasonable doubt.
72. The law is also settled that merely on the basis of presumption and conjecture, there cannot be conviction of a person snatching away the right to life as directed under Article 21 of the Constitution of India, rather the principle is that the conviction is to be based upon the evidence as produced by the prosecution witness if found to be proved beyond all reasonable doubt.
73. 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:-
"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 time-tested 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 were the real culprits. We 35 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 really entertain doubt about the involvement of the appellants in the crime."
74. 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:-
"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."
75. 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: -
"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 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 36 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 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."
76. Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph- 32 and 33 has held as under:-
"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.
33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.---
-
77. This Court applying the aforesaid principles and based upon the discussion made herein above, is of the view that the judgment of conviction of the 37 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 appellants passed by the learned trial court based upon the testimony of the P.W.5 is not fit to be acceptable.
78. Taking into consideration the testimony of P.W.-5 of Sessions Trial No. 232 of 1991 who has been considered as an eye witness as also taking into consideration the testimony of P.W.-2 and P.W.-3 of the said sessions trial this Court is of the view that the judgment passed by the learned trial court in Sessions Trial No. 232 of 1991 requires interference by this Court.
79. Accordingly, the impugned judgment of conviction dated 08.10.1996 and order of sentence dated 09.10.1996 passed by learned 4th Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 232 of 1991 is hereby set aside.
80. The question for consideration of legality and propriety of the impugned judgment passed in Sessions Trial No. 232A of 1991 subject matter of Criminal Appeal (DB) No. 185 of 2020 is now required to be considered as to whether the prosecution has been able to prove the charge said to be beyond all reasonable doubt. However, the testimony of P.W.-5 of Sessions Trial No. 232 of 1991 who has been examined as P.W.-3 in Sessions Trial No. 232A of 1991 is quite different to the effect that she has stated in the cross-examination that due to dark night she could not identify the accused persons likewise the P.W.-2 and P.W.-3 of Sessions Trial No. 232 of 1991 have consistently deposed in their testimony that the P.W.-5, Bilaso Devi had disclosed at the time when she was being carried to the hospital in scooter that some dacoits had come and committee murder of her daughter 38 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 as also assaulted her leading to serious injury but said evidence is not available in the testimony of P.W.-3 of Sessions Trial No.232A of 1991.
81. The Court is to consider as to whether in absence of said version and in isolation whether because of some transaction merely on the ground that the P.W.-3 of Sessions Trial No.232A of 1991 had deposed that she had seen the appellant coming out from the house along with co-accused, the judgment of conviction can be said to be justified only with the aid of Section 34 of IPC?
82. Further, since the learned trial court by taking aid of the Section 34 of the IPC has convicted the present appellants for the alleged offence, therefore at this juncture it would be apt to discuss the ingredients of Section 34 of the IPC.
83. It needs to refer herein that under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.
84. Thus, from the aforesaid settled position of law it is evident that Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive 39 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime.
85. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime.
86. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
87. Further, the burden lies on the prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention of all at a prior concert. However, it is not required for the prosecution to establish that there was a prior conspiracy or premeditation; common intention can be found in the course of occurrence.
40 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
88. To apply Section 34 apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. But if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Jai Bhagwan v. State of Haryana (1999) 3 SCC 102.
89. As held by the Constitution Bench of the Hon'ble Apex Court in Mohan Singh v. State of Punjab AIR 1963 SC 174, common intention denotes action in concert, and a prior meeting of minds--the acts may be different, and may vary in their character, but they are all actuated by the same common intention. However, prior concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons. Thus, the question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused persons had the common intention to commit the offence with which they could be convicted
90. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether the culpability against the appellant in the instant case is 41 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020 made out under the alleged Section of the Indian Penal Code read with Section 34 of the Indian Penal Code by appreciating the evidences.
91. It is admitted case of the prosecution if the testimony of P.W.-3 of Sessions Trial No.232A of 1991 who has been considered to be eye witness will be taken into consideration that she had seen the appellant of Criminal Appeal (DB) No. 185 of 2020 coming out from the house and basing upon the same, the judgment of conviction has been passed but as has been propounded by the Hon'ble Apex Court in the judgments hereinabove on the consideration of the issue of conviction by taking aid of Section 34 of IPC that specific attributability is required to be shown of one or the other accused persons and merely on the ground of presence at the place of occurrence, there cannot be any conviction by taking aid of Section 34 of IPC and that is exactly the case herein but the same has not been taken into consideration by the learned trial court.
92. This Court, on the basis of discussion made hereinabove, is of the view and further taking into consideration the testimony of P.W.-3 of Sessions Trial No. 232 A of 1991 who has been considered as an eye witness as also taking into consideration that no specific attributability has come against this appellant is of the view that the judgment passed by the learned trial court in Sessions Trial No. 232A of 1991 requires interference by this Court.
93. Accordingly, the impugned Judgment of conviction and order of sentence dated 19.12.2019 passed by learned Sessions Judge, Latehar in Sessions Trial No. 232A of 1991 is hereby set aside.
42 Cr. Appeal (DB) No. 206 of 1996 (R) with Cr. Appeal (DB) No. 185 of 2020
94. Consequent thereto, both the criminal appeals i.e. Cr. Appeal (DB) No. 206 of 1996 and Cr. Appeal (DB) No. 185 of 2020 are hereby allowed. Accordingly, the appellants of both the appeal are hereby discharged from the criminal liability.
95. Pending interlocutory application(s), if any, also stands disposed of.
96. Let this order/judgment be communicated forthwith to the court concerned along with the Lower Court Records.
(Sujit Narayan Prasad, J.)
I agree,
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 16 / 07 /2025
Saurabh /Samarth/ A.F.R.
43 Cr. Appeal (DB) No. 206 of 1996 (R)
with
Cr. Appeal (DB) No. 185 of 2020