REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELALTE JURISDICTION

CRIMINAL APPEAL NOS.  862-863 OF 2001

Mukul Mahto and Ors. ….Appellants

Versus

State of Jharkhand and Anr. ….Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of

the  Jharkhand  High  Court,  allowing  the  appeal  filed  by  the  State  and

thereby setting aside the acquittal of accused-respondents before it. All the

five accused persons were convicted for offences punishable under Section

326 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’)

and  were  sentenced  to  undergo  rigorous  imprisonment  for  four  years.

Accused Durga  was  convicted  for  offence punishable  under  Section  324

IPC and sentenced to  undergo imprisonment  for  one  year.   The revision

petition  filed   by  the  informant  was  also  disposed  of.   The  learned

Additional Sessions Judge, Dhanbad, had directed acquittal of the accused

persons who are appellant Nos. 1 to 5 in the present appeal.  

2. Background facts in a nutshell are as follows:

On 12.8.1984 at about 7.30 p.m. while the informant was sleeping in

his house, his brother Bistu Mahto (hereinafter referred to as the ‘deceased’)

visited his house to borrow his bullock. As soon as the deceased came out of

the house, after talk with the informant, all the five accused way laid him

and started to abuse him. The deceased retorted and exchanged abuses with

them, whereafter, the accused persons assaulted and wounded the deceased

with lathi and axe. On hearing his cry, the informant and others i.e. Golak

Mahto (PW-3), Kirtan Mahto, Laxman Mahto (PW-8) and Jitu Mahto (PW-

7) rushed from their house to save the deceased. But the accused persons

variously  assaulted  them  as  well  as  the  informant  with  lathi  and  axe.

Jaleshwar Mahto, Asu Mahto, Suphan Modi (not examined) and some other

villagers had also witnessed the occurrence.  

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The  further  prosecution  case  is  that  deceased  who  had  sustained

bleeding head injury and the other injured namely PWs 3, 7, 8 and Kirtan

Mahto were carried with the help of the villagers and admitted to the State

Dispensary,  Baliapur  for  treatment  wherefrom  the  deceased  and  PW-3

whose condition was serious were shifted to Sindri F.C.I. Hospital and after

two  days  the  deceased  succumbed  to  the  wounds  in  the  hospital,  while

undergoing treatment.

On the basis of the information lodged, investigation was undertaken.

After the death of the deceased on 15.8.1984 charge under Section 302 read

with Section 34 IPC was added in addition to the registration of the case

under  Sections  341,  323  and  506  read  with  Section  34  IPC.  Accused

persons pleaded innocence. It was stated that accused Durga had instituted a

case against 11 persons including the informant, the deceased, Golak Mahto

(PW-3), Kirtan Mahto, Laxman Mahto (PW-8) and one Nitu Mahto. The

trial  Court  came to hold that  accusations were not  established.  The main

reason given for the acquittal of accused persons was that PWs 1 and 2 were

hearsay  witnesses  and  PWs  4  and  6  are  related  to  the  deceased.  They

claimed to be the eye witnesses to the occurrence and   were not cited in the

first information report. PW-8 was an injured witness who had stated that

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when  he  reached  the  place  of  occurrence,  none  was  present  except  the

accused persons and the prosecution party and this  falsified the  claim of

PWs 4 and 6 that they had witnessed the actual assault.  One of the injured

Kiran Mahto was not examined and no explanation was given for his non

examination.   The  evidence  of  PWs 3,  7,  8  and  10  was  held  to  be  not

sufficient  though they claimed to  have  sustained injuries.  Another  factor

which  weighed  with  the  trial  Court  was  that  the  witnesses  were  close

relatives of the deceased.   

3. The High Court as noted above, reversed the conclusions and directed

conviction.

4. In support of the appeals, learned counsel for the appellants submitted

that the parameters of an appeal against acquittal have not been kept in view

by the High Court.  The trial  Court had doubted the credibility of the so

called eye witnesses PWs 3, 4, 6, 7, 8 and 10 who were relatives of the

deceased. The High Court found that the evidence of PWs 3, 7, 8 alongwith

PW-10 as well as the evidence of PWs 4 and 6 inspire confidence.  The

High  Court  found  that  the  acquittal  as  directed  was  improper.   It  is

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submitted that the view of the trial Court was a possible view and, therefore,

the High Court should not have interfered.   

5. Learned counsel for the State has pointed out that the view of the trial

Court is unsustainable.  Even after applying the yardsticks highlighted by

this  Court  the  judgment  of  the  High  Court  does  not  suffer  from  any

infirmity.  

6. The High Court has referred to the evidence of PWs 3, 7 and 8.  It has

been  indicated  that  the  doctor  who  examined  these  witnesses  and  the

deceased initially, has not been examined during trial. Since the homicidal

death has not been disputed, the non-examination of the doctor is not fatal.

Another  plea  which  found acceptance  by trial  Court  was  the  absence  of

incised wound when weapon of assault  was axe.  The witnesses  had also

stated about use of lathi.  It is also to be noted that, as done by the High

Court that axes which are generally used in villages for cutting trees and

branches are not so sharp like sword or knife and when used on the head,

can also cause lacerated injuries.  (See Ch. Madhusudhana Reddy v. State of

A.P. 1994 SCC (Crl.) 275)       

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7. The matter can be looked from another angle. Even if they had not

suffered  any  injuries  yet  their  version  as  eye  witnesses  if  credible  and

cogent can be accepted and acted upon and there is no reason to discard

their evidence on the ground that a doctor who examined their injuries was

not  examined.   The High Court  has concluded that  the evidence of PWs

regarding the presence and participation of the accused in the occurrence is

reliable and truthful. The victims of assault would not normally spare the

real culprits and falsely implicate innocent accused persons. Their evidence

clearly shows that  the  deceased was  lying  injured  at  the  spot  where  the

accused persons were present and they assaulted PWs 3, 7 and 8 when they

went to rescue him. With reference to the evidence it has been noticed by

the High Court that the common house of the deceased and PWs 3, 7 and 8,

the eye witnesses is at a very short distance and it is quite natural that on

hearing alarm they had rushed to the place of occurrence.   

8. Apart  from  that  the  evidence  of  PW-10  the  informant  is  of

considerable significance. The High Court has noted that there were some

exaggeration in his statement though reading the same carefully alongwith

the evidence of PWs 3, 7 and 8 lends support to the prosecution case.  

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9. The High Court found the present appellants guilty. But considering

the  manner  of  assault  and  the  surrounding  factors  convicted  them  for

offence  punishable  under  Section  326  read  with  Section  34  IPC.   The

judgment of the High Court does not suffer from any infirmity to warrant

interference.  

10. The appeals are dismissed.  

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, October 15, 2008

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