VIJAY MAHTOversusSTATE OF BIHAR

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.23 of 1999
======================================================
VIJAY MAHTO, SON OF Jamadar Mahto, resident of Village- Bin Toli,
(Hakama), P.S.- Mehdi, District- Saran

                                                       ... ... Appellant/s
                              Versus
STATE OF BIHAR

                                          ... ... Respondent/s
======================================================
Appearance :
For the Appellant   :     Mr. Ravi Bhardwaj, Amicus Curiae
For the State       :     Mr. Ajay Mishra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
        and
        HONOURABLE MR. JUSTICE GIRIJISH KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH)

 Date : 18-06-2026


              Heard learned counsel Amicus Curiae for the

 appellant and learned Additional Public Prosecutor appearing

 for the State.

              2. This appeal has been filed challenging the

 judgment of conviction dated and order of sentence dated

 30.11.1998 passed by the learned 3rd Additional Sessions Judge,

 Saran at Chapra in connection with Sessions Trial No. 300 of

 1997/135 of 1997 arising out of Amnaur (Bheldi) P.S. Case No.

 32 of 1996 whereby and whereunder this appellant has been

 convicted for committing offence under Sections 302 and 34 of

 the Indian Penal Code and has been sentenced to undergo

 rigorous imprisonment for life.
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                      3. The prosecution story, in brief, is that at about 11

         PM on 05.03.1996, full brother of informant, namely Kamaldeo

         Rai, went to sleep on a cot kept by the side of his field while

         informant was still engaged in looking at the fields. It is alleged

         that at about 12 o’clock in the midnight, this appellant, along

         with co-accused Kapil Mahto, Punyadeo Bhagat and three

         unknown persons, armed with dab, arrived there and started

         assaulting Kamaldeo Rai. Upon hulla, informant rushed to the

         spot, however, by the time he reached there, the accused had

         started fleeing away from the place and informant saw his

         brother had died. Informant raised alarm whereupon co-villagers

         Shivchela Rai, Thakur Rai, Lal Babu Rai and others arrived

         there and witnesses the incident. It is further alleged that about 5

         to 6 days prior to the above occurrence, the accused had

         threatened the deceased of dire consequences if he did not

         execute sale deed in their favour.

                      4. In this case, in order to bring home guilt of this

         appellant, the prosecution has examined altogether eight

         witnesses.

                      5. P.W. 1, namely Shivchela Rai, in his examination in

         chief, stated that on hulla, he rushed to the place of occurrence

         and upon arrival, he found the deceased lying dead on the cot. In
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         his cross-examination, he claimed that he saw the accused

         killing the victim and fleeing when villagers approached. He did

         not speak about torch.

                      6. P.W. 2, namely Thakur Rai, stated that after hearing

         cries, he rushed to the place of occurrence and saw Kamaldeo

         Rai lying dead. He further stated that he saw three persons,

         namely Vijay Mahto (appellant), Kapil Mahto and Punyadeo

         Bhagat armed with sharp cut weapons assaulting Kamaldeo Rai.

         He further stated that he identified the accused in the light of

         torch. In cross-examination, he said that when he reached the

         place of occurrence, Kamaldeo Rai was already lying dead.

                      7. P.W. 3, namely Lalbabu Rai, who also claims to be

         eye witness of the occurrence, stated that he heard alarm of

         “bachao bachao” and on hearing the alarm, he and Kamta Rai

         lit a torch and reached the place of occurrence and saw Vijay

         Mahto, Kapil Mahto and Ranjan Mahto running from the place

         of occurrence. He stated that he could not identify the other

         three accused persons. In cross-examination, he admitted that he

         did not disclose the name of the accused persons before the

         police or seeing the accused fleeing. He admitted that after the

         occurrence, he did not go near the place of occurrence during

         the night and he only went near the place of occurrence in the
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         morning along with police. He stated that he did not actually see

         the assault being made rather he saw some persons running

         away after hearing the alarm.

                      8. P.W. 4, namely Ramyodhya Rai, is a formal witness

         and is witness of the inquest report and seizure list.

                      9. P.W. 5, namely Ishwari Rai @ Kishori Rai, is full

         brother of informant and a hearsay witness. According to him,

         co-villagers informed him that Vijay Mahto, Kapil Mahto,

         Punyadeo Bhagat and three unknown persons have assaulted

         Kamaldeo Rai and killed him. He admitted animosity with the

         accused persons and also stated about the caste rivalry. In

         Paragraph No. 9 of his deposition, he stated that in the night of

         the occurrence, there was a meeting in which Mukhiya,

         Sarpanch and others came at the place of occurrence and after

         discussion and deliberation they decided to lodged F.I.R. in the

         next morning.

                      10. P.W. 6, namely Kamta Rai, is informant of the

         present case and eye witness of the occurrence. He deposed in

         examination in chief that he along with the deceased was

         irrigating the onion field at about 9 PM after taking meals.

         Thereafter, his brother, namely Kamaldeo Rai (deceased), went

         to sleep on a cot and while P.W. 6 was awake, he noticed
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         several persons approaching from the western side and

         identified them as Vijay Mahto (appellant), Kapil Mahto,

         Punyadev Bhagat and others and according to him, the accused

         persons surrounded Kamaldeo Rai and assaulted him. Hearing

         the cries, he raised alarm and thereafter, the assailants fled away

         from the place of occurrence. He further claims that this

         appellant wanted to purchase a land of the deceased which he

         refused to sell and, therefore, he had motive. Thus, P.W. 6 is the

         main eye witness of the prosecution.

                      11. P.W. 7, namely Dr. Uma Shankar Prasad

         Shrivastav, is doctor who conducted the post mortem of the

         deceased and found multiple injuries on the persons of the

         deceased.

                      12. P.W. 8, namely Altaf Ali Khan, is the Investigating

         Officer. He in Paragraph 16 of his deposition stated that neither

         any one produced any torch before him nor he seized any torch.

         In Paragraph No. 17 of his deposition, he stated that P.W. 1,

         namely Shhivchela Rai, never stated that he was irrigating the

         field along with the deceased. He further stated that P.W. 1 never

         said that he saw the accused persons killing the deceased rather

         he said that he saw the accused fleeing from the place of

         occurrence. In Paragraph No. 18 of his deposition, he stated that
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         P.W. 2, namely Thakur Rai, never stated that he saw the accused

         killing the deceased. He also stated that P.W. 2 never said that he

         identified the accused in torch light. He further stated that P.W.

         3, namely Lalbabu Rai, stated that he came to know the name of

         the accused through the informant, namely Kamta Rai and he

         denied to have witnessed the accused fleeing from the place of

         occurrence.

                       13. The prosecution has also adduced documentary

         evidences, which are marked as:-

         Exhibit 1           Signature of Ram Ayodhaya Rai on Inquest report of carbon
                             copy
         Exhibit 1/1         Signature of Ram Ayodhaya Rai on seizure list
         Exhibit 1/2         Signature of Kamta Rai on fard beyan
         Exhibit 1/3         Signature of Ram Prasad Rai on fard beyan
         Exhibit 1/3         Signature of Bhikhari Rai on fard beyan
         Exhibit 2           Post mortem report of Kamaldeo Rai
         Exhibit 3           Fard beyan of Kamta Rai
         Exhibit 4           Inquest report
         Exhibit 5           Seizure list
         Exhibit 6           Formal F.I.R.



                       14. On the other hand, the defence has not produced

         any oral or documentary evidence.

                       15. After hearing the parties, the learned trial court

         convicted this appellant and sentenced him, as indicated in the

         opening paragraph of this order.

                       16. Learned Amicus Curiae appearing for the

         appellant assails the order of conviction and sentence on
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         multiple grounds. He submits that as per fard beyan, P.W. 1,

         namely Shivchela Rai; P.W. 2, namely Thakur Rai and P.W. 3,

         namely Lalbabu Rai, are eye witnesses of the alleged

         occurrence, however, in their deposition, they have clearly

         stated that they reached the place of occurrence after hearing the

         hulla and only saw this appellant, along with other accused

         persons, fleeing from the place of occurrence and did not see the

         accused making any assault on the person of the deceased. P.W.

         5, namely Ishwari Rai @ Kishori Rai, who happens to be full

         brother of the informant, is a highly interested and hearsay

         witness. He also reached the place of occurrence after hearing

         the hulla and has not seen this appellant committing the alleged

         occurrence. He also deposed that there was a meeting in which

         Mukhiya, Sarpanch and others came at the place of occurrence

         and after discussion and deliberation they decided to lodge

         F.I.R.. Thus, there is no independent witness who has

         corroborated the prosecution story. It is further submitted that as

         per prosecution case, the alleged occurrence took place at 12

         o’clock in the midnight and the witnesses claimed to have

         recognized the accused with the help of a torchlight. However,

         the said fact has neither been disclosed in the F.I.R. nor the

         alleged torch was produced before the Investigating Officer
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         during investigation nor was it produced before the learned Trial

         Court. In the circumstances, it is difficult to believe that the

         appellant has been identified in the torchlight. Therefore, the

         prosecution has failed to prove the case beyond reasonable

         doubts and the trial court has wrongfully convicted this

         appellant ignoring material contradictions and hence, the

         appellant is fit to be acquitted. In support of his submissions, he

         has placed heavy reliance upon judgments of the Hon’ble Apex

         Court passed in the case of Kapil Deo Mandal and Others

         versus State of Bihar reported in (2008) 16 SCC 99 and in the

         case of State represented by Inspector of Police, Tamil Nadu

         versus Sait @ Krishnakumar reported in (2008) 15 SCC 440.

                      17. Per contra, learned Additional Public Prosecutor

         for the State submits that the evidence on record unmistakably

         points to the guilt of the appellant. The prosecution could prove

         that it was this appellant who committed the occurrence.

         Charges against the appellant was proved by the prosecution

         witnesses beyond all reasonable doubt and, therefore, the

         learned Trial Court was fully justified in convicting the

         appellant under Sections 302 and 34 of the Indian Penal Code.

                      18. On going through the rival submissions,

         judgments of the Hon’ble Apex Court, evidences and upon
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         perusal of the records, this Court finds that in this case there are

         lot of discrepancies and inconsistencies in the evidence. In this

         case, P.W. 1, namely Shivchela Rai; P.W. 2, namely Thakur Rai

         and P.W. 3, namely Lalbabu Rai, though claimed to be eye

         witnesses but they are not witnesses of the actual incident and

         there is material contradiction in their statements. P.W. 1 in his

         examination in chief stated that when he reached the place of

         occurrence, the deceased was lying dead in the cot and as such,

         he did not see the actual assault. However, in his cross-

         examination, he claimed to have seen the actual assault by the

         accused persons. Similarly, P.W. 2, namely Thakur Rai, claims

         to have seen the accused assaulting the deceased in the light of

         torch, however, in his cross-examination he admitted that he did

         not say before the police that he identified the accused in the

         torch light and also did not claim to be an eye-witness of the

         actual occurrence rather stated that all the accused fled away

         when he reached the place of occurrence. P.W. 3, namely

         Lalbabu Rai, also deposed that he reached the place of

         occurrence only after hearing the hulla and has not seen this

         appellant committing the alleged occurrence. In his cross-

         examination, he denied the fact that he went near the place of

         occurrence at night and according to him, the went there in the
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         morning along with the police. P.W. 5, namely Kishori Rai, is

         full brother of informant and thus, an interested witness and is a

         hearsay witness. He also deposed that there was a meeting in

         which Mukhiya, Sarpanch and others came at the place of

         occurrence and after discussion and deliberation they decided to

         lodged F.I.R.. P.W. 6, namely Kamta Rai, who is informant of

         the present case, brother of the deceased and claims to be eye

         witness of the actual occurrence in Paragraph No. 1 of his

         deposition introduced torchlight and moonlight as source of

         identification. The incident happened at 12 o’clock in the night.

         Witnesses have claimed to have seen the incident and

         recognized the appellant either in the torchlight or in the

         moonlight. However, neither the torch was mentioned in the

         F.I.R. nor was shown to the investigating officer during

         investigation nor it was produced before the learned trial court.

         In the circumstances, it is difficult to believe that appellant was

         identified in the torchlight or in the moonlight. In this

         connection, reliance can be placed upon judgments of the

         Hon’ble Apex Court rendered in the case of Kapildeo Mandal

         and others versus State of Bihar reported in (2008) 16 SCC 99

         and in the case of Durbal versus State of Uttar Pradesh

         reported in (2011) 2 SCC 676.
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                      19. The very fact that the torchlight was pressed into

         service for the purpose of identifying the accused, itself suggests

         that it was a pitch-dark night during the mid-winter and it was

         not possible to identify the assailants without the aid of

         torchlight. It is highly doubtful as to whether PWs 1, 2, 3 and 6

         had actually torchlights in their hands as stated by some them, in

         the absence of recovery of the same by the police during

         investigation and non-production before the court. The said fact

         was neither mentioned in the fard beyan. Mentioning of such an

         important fact for the first time during trial lacks credence and

         cannot be relied upon. Thus, in this case, the informant in the

         F.I.R. or the witnesses in their statement under Section 161 of

         the Cr.P.C., have not disclosed certain facts but introduced the

         fact for the first time before the Court. Such version, lacks

         credence and is liable to be discarded.

                      20. While appreciating the evidence, the Court has to

         take into consideration whether the contradictions/omissions has

         been of such magnitude that they may materially affect the trial.

         Minor      contradictions,       inconsistencies,   embellishments   or

         improvements on trivial matters, which do not effect the core of

         the case of the prosecution, should not be made a ground for

         rejection of evidence in its entirety. However, the discrepancies
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         in the evidence of eyewitnesses, if found not to be minor in

         nature, may be a ground for disbelieving and discrediting their

         evidence. In such circumstances, the witnesses may not inspire

         confidence and if their evidence is found to be in conflict and

         contradiction with other evidence available or with a statement

         that has already been recorded, then in such a case, it cannot be

         held that the prosecution has proved its case beyond reasonable

         doubt. In this connection, reliance can be placed upon

         Mahendra Pratap Singh versus State of Uttar Pradesh

         reported in (2009) 11 SCC 334.

                      21. It is settled law by series of judgments of the

         Hon’ble Apex Court that the omission which in fact amount to

         contradiction in material particulars and goes to the root of the

         case renders the case unreliable. In this case, testimony of the

         witnesses was improved by them while giving statement before

         the learned trial court and involved material contradictions,

         inconsistencies and hence, was not reliable. It is settled law that

         in criminal cases, since life and liberty of the accused are

         involved, a strict standard of proof is required as to prove the

         guilt of the accused. It is not the preponderance of the

         probabilities that establishes the guilt of the accused. It is

         necessary that the evidence on record must prove it beyond
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         reasonable doubt. A conviction cannot be based on the

         consideration that the prosecution story may be true. The

         accused can only be convicted if the court reaches the

         conclusion that the prosecution story must be proved. The

         burden of proving the guilt of the accused is upon the

         prosecution. In this case, the prosecution has miserably failed to

         prove the guilt of the appellant beyond reasonable doubt.

                      22. Taking a look at the above picture, it gives rise to

         substantial doubt regarding the veracity of the prosecution case.

         The material contradictions apparent in deposition of the

         prosecution witnesses significantly undermines the credibility of

         the prosecution case. These inconsistencies renders the

         prosecution case doubtful. On the face of such evident

         discrepancies, recording conviction becomes untenable and

         thus, the impugned judgment is fit to be set aside.

                      23.    Accordingly,          the      impugned   judgment   of

         conviction dated and order of sentence dated 30.11.1998 passed

         by the learned 3rd Additional Sessions Judge, Saran at Chapra in

         connection with Sessions Trial No. 300 of 1997/135 of 1997 is

         hereby set aside with respect to this appellant only.

                      24.    In that view of the matter, appellant, above

         named, is discharged from the liability of his bail bonds in
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                      connection with this case.

                                   25. We appreciate the valuable assistance rendered by

                      Mr. Ravi Bhardwaj, learned counsel (A.U.I.N. No. 6248) who

                      was appointed as an Amicus Curiae in this case, for extending

                      valuable assistance to this Court in deciding this appeal. He

                      shall be paid Rs. 10,000/- (Rupees Ten Thousand) by the Patna

                      High Court Legal Services Committed, Patna towards his

                      professional fee.

                                   26. Accordingly, this appeal stands allowed.

                                   27. Interlocutory application/s, if any, also stands

                      disposed off.




                                             (Prabhat Kumar Singh, J)



                                                  ( Girijish Kumar, J)

shashank/-
AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          19.06.2026
Transmission Date       19.06.2026