Patna High Court
KUNWAR MAHTOversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The appellate court affirmed the trial court’s conviction and dismissed the appeals.
Summary
The appellants, Bharat Mahto and Kunwar Mahto, were convicted for the murder of Ratan Mahto and for illegal possession of a firearm, receiving life imprisonment under Sections 302/34 of the IPC and a three‑year term under Section 27 of the Arms Act. The prosecution’s case rested on the testimony of four relatives of the deceased (PW‑1 to PW‑4) who claimed to have witnessed the shooting, as well as medical and forensic evidence. The defence argued that these witnesses were inconsistent, interested, and possibly not present at the scene, and that a material witness (ASI Dil Kumar Bharti) was not examined, warranting an adverse inference. The court examined the contradictions, held them to be minor, found no illegality in the investigation or in the Section 313 examination of the accused, and concluded that the trial court’s findings were sound. Consequently, the appeals were dismissed and the convictions affirmed.
Issues considered
- Whether the testimonies of PW‑1 to PW‑4 constitute reliable eye‑witness evidence despite contradictions.
- Whether the contradictions in the eyewitness accounts are material enough to affect the conviction.
- Whether the non‑examination of ASI Dil Kumar Bharti amounts to suppression of a material witness and warrants adverse inference.
- Whether the investigation commenced before the FIR was registered violates provisions of the CrPC.
- Whether the accused were properly examined under Section 313 of the CrPC.
- Whether the convictions under Sections 302/34 IPC and Section 27 Arms Act can be sustained.
Legislation cited
- Arms Act — s. 27
- Code of Criminal Procedure, 1973 — s. 156(1), 174, 235(1), 313
- Indian Penal Code — s. 302, 34
Subjects
- murder
- firearm
- land dispute
- eyewitness testimony
- section 313 examination
- appeal dismissed
- conviction affirmed
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.356 of 2019
Arising Out of PS. Case No.-189 Year-2016 Thana- UDWANTNAGAR District- Bhojpur
======================================================
BHARAT MAHTO Son of Shri Bhola Mahto, Resident of village-Bibiganj,
P.S-Udwantnagar, District-Bhojpur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 337 of 2019
Arising Out of PS. Case No.-189 Year-2016 Thana- UDWANTNAGAR District- Bhojpur
======================================================
KUNWAR MAHTO Son of Bhola Mahto Resident of Village- Bibiganj, P.S.-
Udwantgagar, District- Bhojpur
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 356 of 2019)
For the Appellant/s : Mr. Prince Kumar Mishra, Advocate
Ms. Priyanka Kumari, Advocate
Mr. Sanjiv Kumar, Advocate
For the Respondent/s : Mr. Ajay Mishra, A.P.P.
(In CRIMINAL APPEAL (DB) No. 337 of 2019)
For the Appellant/s : Mr. Prince Kumar Mishra, Advocate
Ms. Priyanka Kumari, Advocate
Mr. Sanjiv Kumar, Advocate
For the Respondent/s : Km. Shashi Bala Verma, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 03-04-2026
These are two appeals filed by Kunwar Mahto and
Bharat Mahto respectively, assailing the judgment and order of
conviction dated 21.01.2019 passed by the learned Additional
District and Sessions Judge-III, Bhojpur at Ara in Sessions Trial
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No.214 of 2017 arising out of Udwantnagar Police Station Case
No.189 of 2016 dated 27.04.2016, whereby and whereunder the
above-named two appellants were convicted under Sections
235(1) of the Cr.P.C. and sentence to suffer imprisonment for
life for the offences punishable under Section 302/34 I.P.C. on
payment of fine of Rs.20,000/- each, in default, of payment of
fine further imprisonment for six months each. The appellants
were also convicted and sentenced to suffer imprisonment for
the offence punishable under Section 27 of the Arms Act for
three years each and also to pay fine of Rs.2,000/- each, in
default, of payment of fine, further imprisonment for one month
each.
2. It is pertinent to mention at the outset that the
F.I.R. case was instituted against three persons. Beside the
appellants, one Manoj Yadav was also an F.I.R. named accused,
but the case in the Trial Court against him was abated due to his
death during trial.
Factual Matrix
3. On 27.04.2016 at about 01:30 p.m., one Godhan
Mahto of village-Bibiganj under P.S.-Udwantnagar made a
statement before the Police Officer of Ara Nagar Police Station
at the District Hospital, Ara, alleging inter-alia, that on the same
date a marriage ceremony of his nephew Munna Mahto was
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being performed in his house. Grooms party were about to
proceed to village-Harigaon and on this occasion, the musicians
were playing music standing on the pathway running East to
West. At about 11:45 A.M., the accused persons, namely, Manoj
Yadav, Bharat Mahto, Kunwar Mahto appeared in front of the
house of the informant. Accused-Manoj Yadav and Bharat
Mahto brought out a country made pistol from their waist and
opened fired at the son of the informant, namely, Ratan Mahto
from close distance. On receiving gunshot injury, the son of the
informant fell down. In the meantime, Kunwar Mahto also fired
at him. Hearing the sound of firing, the neighboring people
came to the place of occurrence, but the accused persons fled
away. The informant immediately took his son to the District
Hospital at Ara, but the Medical Officer declared him dead.
4. It is also stated by the informant that the father of
Bharat Mahto and Kunwar Mahto transferred a piece of land
measuring about 02 katha to his brother Raghu Mahto about 2-4
years before the incident. On the issue of transferring the said
land, a dispute was going on between Raghu Mahto and Kunwar
Mahto, a title suit was also pending between the parties. Due to
such dispute, the above-named accused persons committed
murder of the son of the informant resorting to gunshot injury.
5. The statement of Godhan Mahto was recorded by
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one Dil Kumar Bharti, ASI of Police at Ara Nagar Police Station
at 01:30 p.m.
6. The said Dil Kumar Bharti also held inquest over
the dead body of deceased Ratan Mahto. The said F.I.R. was
transmitted to Udwantnagar Police Station and formal F.I.R. was
drawn on 27.04.2016 at about 07:30 p.m. under Section 302/34
of the I.P.C.
7. The S.H.O., Udwantnagar Police Station
entrusted S.I.-Manoj Singh, Incharge of Gajrajganj O.P. to
investigate into the case.
8. On completion of investigation, police submitted
charge sheet against the accused persons/appellants under
Section 302/34 I.P.C. and Section 27 of the Arms Act before the
learned Chief Judicial Magistrate, Bhojpur at Ara.
9. On commitment of the case, the learned Sessions
Judge transferred the case record to the Court of the learned
Additional District and Sessions Judge-III, Bhojpur at Ara for
trial and disposal.
10. It appears on perusal of the Lower Court
Record that accused Manoj Yadav died even before framing of
charge in Sessions Trial No.214 of 2017. The charge was framed
against the present appellants under Section 302/34 I.P.C. and
Section 27 of the Arms Act. The accused/appellants pleaded not
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guilty when the charge was read over and explained to them.
Hence, the Trial.
11. We now proceed to examine the evidence
produced on behalf of the prosecution during the Trial.
12. During trial, prosecution examined six
witnesses. They are PW-1-Munna Mahto, who is the nephew of
the informant and whose marriage was scheduled to be
performed on the date of occurrence; PW-2-Godhan Mahto, is
the informant himself; PW3-Vishwanath Mahto, father of the
informant; PW4-Shiv Kumar Mahto, who is the brother of the
informant; Manoj Kumar, the I.O., who was examined as PW-5
and PW-6-Dr. Krishna Nand Sinha was the Medical Officer,
who conducted postmortem examination over the dead body of
the deceased Ratan Mahto.
13. The formal F.I.R., Fardbeyan, Inquest Report of
the deceased and Postmortem Report were exhibited during
Trial.
14. PW1-Munna Mahto stated in his Examination-
in-Chief that his marriage was arranged from his maternal
uncle’s house. At about 11:45 A.M., he was standing in front of
the door of their house. The musicians and band players were
playing music on the pathway running East to West in front of
their house. At that point of time, the accused person, namely,
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Manoj, Bharat and Kunwar came in front of their house and all
of them fired at Ratan on his head and chest. On receiving
gunshot injuries inflicted by Manoj and Bharat, Ratan fell down
on the ground. Then, Kunwar fired on the right arm of Ratan.
Ratan was taken to hospital and he was declared dead.
15. It is ascertained from his cross examination that
there is a lane running East to West in front of their house
having 4-5 feed in width. There was no one in the lane at the
time. The said lane is approximately 100 yards long attaching to
the main Motorable road on both sides. PW-1 could not state as
to whether the accused persons came from East or West
direction. However, it was stated by him that the incident took
place within 1 and 2 minutes. He also deposed that at that point
of time his maternal uncle and maternal grandfather were in the
cowshed situated just opposite to their pucca house adjacent to
the lane. By the time, the uncle and grandfather reached the
place of occurrence, the accused had fled away from the same.
16. PW2-Godhan Mahto being the informant
corroborated his statement in his Examination-in-Chief. He
claimed himself to be the eye witness of the occurrence. In his
Examination-in-Chief, he also stated that he was in the cowshed
and his son was standing in front of the door of the cowshed.
PW-2 corroborated the evidence of PW-1, stating on oath that
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Manoj fired at the head, Bharat fired at the right side of rib cage
and Kunwar Mahto fired at the right hand of Ratan. It is
ascertained from his cross examination that PW-2 has two
brothers, namely, Shiv Kumar and Raghu. All three brothers are
separated in mess but live in the same house. He admitted that a
piece of land was purchased by Raghu Mahto from the fire arm
of the accused persons and over the said land a dispute and
litigation was going on. PW-2 said that the lane running from
East to West in between their residential house and cowshed is
six feed wide. From cross examination, it is further found that
PW-2 saw the incident from a distance of about 03 feet away
where his son had received gunshot injury. During cross
examination, he also stated that no villager said anything about
their presence in the scene of occurrence or they would have
seen the accused persons committing murder of Ratan.
17. PW-3-Vishwanath Mahto, is the father of the
informant, it is found from his Examination-in-Chief that at the
relevant point of time, he was collecting disposable plates used
by the guests from the courtyard after having their lunch. He
also stated that approximately 50 persons took their lunch sitting
in the courtyard, which is 08 feet in length and 08 feet in width.
About 15-16 persons were also waiting to take lunch. While
they were serving food to the guests, PW-3 should be heard the
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sound of firing. According to PW-3, women members of the
family were performing marriage rituals on the western side
roof and Munna, the bride groom, was being bathed on the
western side roof. He also stated that the musicians were
playing bands and people were standing on all sides to enjoy
music and dance. Ratan was also standing there, where he was
shot dead.
18. PW4-Shiv Kumar Mahto, stated in his evidence
that he was inside the cowshed when the incident took place.
Shiv Kumar Mahto gave the same account of the incident like
other witnesses. He was also a witness to the inquest report of
the deceased. It transpired from his cross examination that there
were 50 persons standing at the door at the time of incident. Ten
persons of their village were also present near the place of
occurrence. The music was being played very loudly. PW-1-
Munna Mahto was on the roof of the house to attend marriage
rituals. In cross-examination of PW-4 itself, it was taken by the
defence that though there were 50-60 persons present at the
place of occurrence, nobody dared to say anything about the
incident.
19. PW-5, Manoj Kumar is the Investigating
Officer, who took up the investigation of the case, on being
directed by the SHO of Udwantnagar Police Station of Ara
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Sadar Hospital Police Camp recorded the Fardbeyan of the
informant and prepared Inquest Report of the dead body of the
deceased. During investigation, PW-5 visited the place of
occurrence, it is stated by him that the house of the informant is
North facing on the PCC lane at Village-Bibiganj. The offence
was committed on the lane in front of the house of the
informant. On the opposite side of the house of the informant,
there is a cowshed in the neighborhood there is a house of one
Kunwar Mahto after the house of the informant.
20. It is pointed out from the cross-examination of
PW5 that the alleged incident took place on 27.04.2016 at about
11:45 A.M., one Dil Kumar Bharti, ASI of Police attached to
Ara District Hospital Police Camp held inquest over the dead-
body of the deceased at 12:00 noon. Fardbeyan of the informant
was recorded at 01:30 P.M. The Investigating Officer being the
Incharge of Gajrajganj O.P. received Fardbeyan at 03:00 P.M.
from local Chowkidar and started investigation of the case
before intrestment of investigation to him by the S.H.O.
Udwantnagar Police Station. The F.I.R. was registered at about
07:30 P.M. and only then PW-5 was entrusted to investigate into
the case.
21. PW-6, Dr. Krishna Nand Sinha was the Medical
Officer, who conducted autopsy over the dead-body of Ratan
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Mahto. He found the following injuries on the person of the
deceased:-
“Injury No.1( wound of entry):-
Right side frontal area with charring margin 1x3
inch X 1x3 inch
Injury No.2 (Wound of exit):- Back
area of skull 2x3 inch X 2x3 inch, deep
lacerated wound.
Injury No.3 (Wound of Entry):-
Lacerated round 1x3 X 1x3 inch deep round
wound on right lower arm, lateral side of
dorsum part
Injury No.4 (Wound of exit):-
Lacerated wound right lower arm lateral ventral
part 1x2 X 1x2 inch deep.
Injury no.5 (Wound of exit):- Right
side chest mid part. lacerated wound 1/3 inch x
1/3 inch deep with charring margin. that is
wound of entry no wound of exit found. on
chest x-ray a bullet like metal left hyllum of in
mid part.”
22. During cross-examination, he stated that Injury
Nos.3 and 4 can be inflicted when the injured is in standing
position. The said injury was caused approximately about a
distance of 12 feet. The Medical Officer also found a bullet
stuck in the hyllum of the chest. The said bullet was extracted.
23. This is all about the evidence on behalf of the
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prosecution.
24. On the basis of the evidence of the witnesses,
on behalf of the prosecution, the appellants were examined
under Section 313 of the Cr.P.C.. Defence case as disclosed
from the trend of cross examination of the witnesses on behalf
of the prosecution and examination of the accused under Section
313 of the Cr.P.C. appears to be complete denial of the
prosecution case.
25. It is contended on behalf of the appellants that
they were falsely implicated in this case due to land dispute
between them and the uncle of the deceased.
Submission on behalf of the appellants in Appeals
26. Learned Advocate on behalf of the appellants at
the outset submit that the evidence on record clearly suggests
that the presence of PW-1 to PW-4, who claimed themselves to
be the eye witnesses of the occurrence are absolutely doubtful.
In order to substantiate his contention, it is pointed out by the
learned Advocate on behalf of the appellants that according to
PW-1 at the time of occurrence, he was standing in front of the
door of their house. However, from the evidence of PW-3 and
PW-4, it is ascertained that PW-1 was taking bath on the western
side roof of the house while some rituals of marriage were being
performed. Therefore, from the evidence of PW-3 & PW-4,
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presence of PW-1 in front of the door of the house remains not
only doubtful, but absolutely false. So PW-1 had no occasion to
see the incident. Therefore, he is not a competent witness to say
when, where and how the incident took place.
27. Secondly, it is further submitted by the learned
Advocate for the appellants that PW-2, who is the informant in
this case stated that at the time of occurrence he was present in
the cowshed. On the contrary, according to PW-1 his maternal
uncle and his whole family were in the courtyard (vk¡xu) at the
time of occurrence. Similarly, PW-3, who is the grandfather of
the deceased stated on oath that he was collecting disposable
plates (iRry) from the courtyard after the lunch taken by
approximately 50 persons. PW-2-Godhan Mahto and PW-4-Shiv
Kumar Mahto were serving food to Baraties.
28. The learned Advocate for the appellants further
submits that the I.O. did not prepare the sketch map of the place
of occurrence. However, from the description of place of
occurrence as recorded in the case diary, the learned Advocate
for the appellants prepared a sketch map of the house of the
informant to show that it is impossible for anybody to see any
incident that takes place at the lane in front of the house of the
informant from the courtyard. Therefore, PW2, PW3 and PW4
also did not see the incident, as claimed by them in their
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evidence.
29. The learned Advocate for the appellants also
referred to the evidence of PW4-Shiv Kumar Mahto and
submitted that though PW-4 claimed that, at the time of
occurrence, he was present in the cowshed (xŔkkyk) watching
the band party play music, his statement is proved to be false
when confronted with the evidence of PW-1 and PW-3.
30. The learned Advocate for the appellants further
submits that in these appeals, PW-5 started investigation even
hours before the registration of F.I.R. He also submits that one
Dil Kumar Bharti, Incharge of Ara Hospital Police Out Post
recorded the statement of the informant at about 12:00 Noon
and prepared inquest over the dead-body of the deceased at
about 01:30 p.m.. Surprisingly enough, the said Dil Kumar
Bharti has not been examined as a witness during trial of the
case. It is submitted by him that the said Dil Kumar Bharti is a
material witness and non-examination of the said witness is fatal
for the prosecution.
31. The learned Advocate for the appellants further
submits that as per the evidence of PW-3, there were 50-60
people present in the courtyard of their house after taking lunch.
About 15-16 people were waiting to take lunch. Local villagers
were enjoying music and dance being performed on account of
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the marriage of Munna, but the prosecution could not produce
any independent witness of the same village as the eye witness
of the occurrence.
32. In support of his contention, he refers to a
decision of Apex Court in the case of Takhaji Hiraji V. Thakore
Kubersing Chamansing, reported in (2001) 6 SCC 145. In
paragraph No.19 of the aforesaid judgment, it was observed by
the Hon’ble Supreme Court:-
“19. …………..It is true that if a
material witness, who would unfold the genesis
of the incident or an essential part of the
prosecution case, not convincingly brought to
fore otherwise, or where there is a gap or
infirmity in the prosecution case which could
have been supplied or made good by examining
a witness who though available is not
examined, the prosecution case can be termed
as suffering from a deficiency and withholding
of such a material witness would oblige the
court to draw an adverse inference against the
prosecution by holding that if the witness
would have been examined it would not have
supported the prosecution case.
33. It is further observed by the Hon’ble Supreme
Court:-
“………...In such a case the court
ought to scrutinise the worth of the evidence
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adduced. The court of facts must ask itself
whether in the facts and circumstances of the
case, it was necessary to examine such other
witness, and if so, whether such witness was
available to be examined and yet was being
withheld from the court. If the answer be
positive then only a question of drawing an
adverse inference may arise. If the witnesses
already examined are reliable and the testimony
coming from their mouth is unimpeachable the
court can safely act upon it, uninfluenced by the
factum of non-examination of other
witnesses…..”
34. The learned Advocate on behalf of the
appellants has raised serious question on the act and process of
investigation conducted by the I.O. even before the registration
of F.I.R.. In this regard, he refers to the evidence of PW-5 where
he stated that he received the Fardbeyan from the local
Chowkidar at about 03:00 P.M.. Upon receiving the Fardbeyan,
he opened the case diary and started investigation even before
the F.I.R. was returned to him after endorsement by the S.H.O.
of the concerned police station entrusting him with the
investigation of the case.
35. The learned Advocate for the appellants under
the facts and circumstances has questioned about the delay in
registration of F.I.R., stating that the incident took place on
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27.04.2016 at about 11:45 A.M.. Fardbeyan of PW-2 was
recorded at about 01:30 P.M. and the F.I.R. was registered after
a lapse of about 06 hours at about 07:30 P.M.
36. Last but not the least, it is submitted by the
learned Advocate for the appellants that the appellants were not
properly examined under Section 313 of the Cr.P.C. and they
were deprived of their right to explain the incriminating
circumstances allegedly appearing against them.
37. In support of his contention, he refers to the
following decisions of the Hon’ble Supreme Court :- Reena
Hazarika Vs. State of Assam, reported in (2019) 13 SCC 289,
(Para-19 to 21); Satbir Singh Vs. State of Haryana, reported in
(2021) 6 SCC 1, (Para-22); Kalicharan Vs. State of U.P.,
reported in (2023) 2 SCC 583 (Para27 to 29).
38. Thus, it is concluded by him that contradictions
and inconsistencies in the testimony of the alleged eye-
witnesses, which casts doubt on the presence of the eye
witnesses at the place of occurrence, the non-examination of any
independent witnesses from the village where the alleged
incident took place, and the discrepancies between the ocular
and medical evidence were not properly considered by the Trial
Court, and the appellants were entitled to the benefit of doubt in
view of the above-mentioned contradictions and inconsistencies
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in the prosecution case.
39. The learned Advocate on behalf of the State-
Respondent has supported the judgment delivered by the Trial
Court. It is further submitted by her that it is very often our
experience in day-to-day life that persons who have not
themselves experienced the loss or suffering do not come
forward even to extend a helping hand to a person in need. The
villagers in-spite of their presence at the side of occurrence
generally do not come forward to depose against the accused
persons for fear of incurring the enmity and wrath of the
dreaded accused persons, who do not hesitate to finish a human
life in presence of number of people.
40. Under such circumstances, it is not expected
now a days to demand presence of independent witnesses.
41. It is further submitted by the learned Advocate
for the State-Respondent that the villagers are now divided
politically, socially and similar to the old days villagers do not
come forward in most of the cases to assist the victims of
offence. Therefore, in these appeals it was only PW-2 being the
father of the deceased and his uncle (PW4) took the deceased to
the hospital for medical treatment, no villager, as per record,
accompanied them, though, about 60-70 persons came to the
house of the deceased to enjoy the lunch on account of marriage
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of Munna Mahto.
42. Thus, she invited us to decide the case on the
basis of the available witnesses. It is further submitted by her
that PW-1 to PW-4 are the most natural witnesses. Their
evidence cannot be discarded on the ground of interestedness
being close relatives of the deceased.
43. On the contrary, the Court has to consider that
the family members of the deceased would not depose against
an innocent person while allowing the real culprits to escape
prosecution.
44. Under the premises aforesaid, the learned
Advocate for the State has referred to the evidence of the
witnesses and submits that there is no reason to overturn the
decision of the Trial Court in the instant case.
Our Findings
45. The fate of these appeals solely depends upon
adjudication of the question as to whether PW-1 to PW-4 were
eye witnesses of the occurrence or not. If so, the evidence of the
said witnesses can solely be accepted against the accused,
specially when prosecution failed to examine any villager or any
independent witness to corroborate their evidence. Secondly,
whether the evidence of the alleged eye witnesses suffers from
material contradictions. Thirdly, whether their evidence should
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not be considered on the ground of interestedness and whether
investigation of the case was satisfactorily made leading to the
filing of charge-sheet against the accused persons. Last but not
the least, whether the appellants got reasonable opportunity to
explain incriminating circumstances appearing against them.
46. At the outset, we are inclined to record that the
learned Advocate on behalf of the State-Respondent rightly
submits that we are living in a society where most of the people
who do not suffer any loss or injury, are not inclined to come
forward to depose against an accused. This is an attitudinal
change crypt in the mindset of the people. It is our common
experience that the eye witnesses and bias tenders leave the
place without disclosing a criminal offence that takes place
within their sight and hearing. Therefore, in most of the criminal
cases, where some heinous offences happened, the Court finds
only the persons of the family of the victim coming forward to
depose. If the evidence of the said witnesses is discarded on the
ground of interestedness, there will be no evidence to prove the
charge against the accused.
47. In these appeal, the incident took place on the
date of marriage of PW-1 at about 11:45 A.M. There were 50-60
people inside the house of the informant, who took lunch at that
point of time, 15-16 people were waiting for lunch. A band party
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was playing music on the lane in front of the house. Local
villagers were enjoying music and dance. At such place where
many people were present, three assailants appeared at the place
of occurrence in front of the cowshed of the informant and
opened three rounds of fire on the deceased and left the place
unobstructed.
48. We have perused the case diary. The I.O. tried
to examine local people and other villagers, who might have
seen the incident, but everybody expressed their ignorance and
stated that they did not know anything as to how and by whom
deceased was murdered.
49. At this stage, it is our duty to appreciate the
evidence of PW-1 to PW-4 independently and consider whether
their evidence should be discarded due to material
contradictions or whether the contradictions appearing in the
evidence of the above-named witnesses should be treated as
material or minor contradictions that do not suffer the ultimate
decision taken by the Trial Court.
50. It is stated by PW-1 in his evidence that at the
time of occurrence, he was standing in front of the door of their
house (njoktk). It is explained by the learned Advocate for the
State that in Bhojpur area, njoktk does not mean the entrance
door. njoktk is the front portion of the house, leading to the
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entrance door after the said front portion of the house there is
generally a courtyard (vkaxu), where women members of the
family generally stay. Male members of the family are generally
not allowed to go to the courtyard (vkaxu) from njoktk. From the
sketch map prepared on behalf of the appellants there is a six
feet passage between the entrance door and the door of the
courtyard. The PCC lane where the incident took place is visible
from the said passage. Therefore, anybody can witness about
what had happened on the lane on the date and time of
occurrence standing on the passage of the house of the
informant.
51. It is true that PW3 and PW4 stated in their
evidence that at the time of occurrence, Munna was taking bath
on the western side roof and women members of the family
were performing some rituals of marriage. So, there is a
discrepancy as to the place where PW-1 remained present at the
time of occurrence. The question that arises for adjudication at
this stage is as to whether such contradictions is material in
nature touching the root of the decision or minor contradictions.
52. It is needless to say that in a marriage house, on
the date of marriage, there are many people present and
involved in different works. As per example, PW-3 stated on
oath that at the time of occurrence he was collecting disposable
Patna High Court CR. APP (DB) No.356 of 2019 dt.03-04-2026
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plates of the persons, who took lunch. His two sons, including
the informant were serving food to the guests. PW-4 on the
other hand, stated that at the time of occurrence he was inside
the cowshed situated just opposite side of the lane where the
incident took place. Therefore, the house of the informant was
crowded at the relevant point of time when the incident took
place.
53. In such circumstances, the narration of one
witness about the presence of another at a particular place, even
if found to be contradictory, such contradiction is absolutely
immaterial and minor in nature. If we visualise the layout of the
house and the presence of so many people on the date and time
of occurrence, the contradictions pointed out by the learned
Advocate for the appellants are found to be minor in nature.
54. The learned Advocate on behalf of the
appellants raised this question very seriously, as to why Dil
Kumar Bharti, who recorded the Fardbeyan of the informant and
prepared Inquest of the dead-body of the deceased Ratan Mahto
was not examined. The said Dil Kumar Bharti is an ASI of
Police attached to Ara District Hospital Police Out Post. He
recorded the Fardbeyan at about 12 Noon on the basis of the
statement made by PW-2 and prepared inquest over the dead-
body of the deceased at about 01:30 P.M.
Patna High Court CR. APP (DB) No.356 of 2019 dt.03-04-2026
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55. The learned Advocate on behalf of the
appellants has further raised question about the authenticity of
Inquest Report of before registration of Udwantnagar P.S. Case
No.189 of 2016.
56. Section 174 of the Cr.P.C. empowers a police
officer as hereunder:-
“174. Police to enquire and
report on suicide, etc.-- (1) When the officer
in charge of a police station or some other
police officer specially empowered by the State
Government in that behalf receives information
that a person has committed suicide, or has
been killed by another or by an animal or by
machinery or by an accident, or has died under
circumstances raising a reasonable suspicion
that some other person has committed an
offence, he shall immediately give intimation
thereof to the nearest Executive Magistrate
empowered to hold inquests, and, unless
otherwise directed by any rule prescribed by
the State Government, or by any general or
special order of the District or Sub-divisional
Magistrate, shall proceed to the place where the
body of such deceased person is, and there, in
the presence of two or more respectable
inhabitants of the neighbourhood, shall make
an investigation. and draw up a report of the
apparent cause of death, describing such
Patna High Court CR. APP (DB) No.356 of 2019 dt.03-04-2026
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wounds, fractures, bruises, and other marks of
injury as may be found on the body, and stating
in what manner, or by what weapon or
instrument (if any); such marks appear to have
been inflicted.
(2) The report shall be signed by
such police officer and other persons, or by so
many of them as concur therein, and shall be
forthwith forwarded to the District Magistrate
or the Sub-divisional Magistrate.”
57. It is needless to say that investigation or an
inquiry under section 174 Cr.P.C. is distinct from investigation
as contemplated under Section 154 relating to commission of
cognizable offence. This is clearly decided in Manoj Kumar
Sharma Vs. State of Chhattisgarh, reported in (2016) 9 SCC 1.
Therefore, non-examination of ASI, Dil Kumar Bharti cannot be
stated to be suppression of material witness by the prosecution,
when the Fardbeyan and inquest had been marked exhibits in
the Trial Court without any objection, question of examination
of the said witness cannot be held to be material.
58. It is found from record that the I.O. of the case,
(PW-5) received the Fardbeyan at about 03:00 p.m. at
Gajrajganj O.P. On receipt of such information, he started
investigation of the case and proceeded for the place of
occurrence. Thereafter, the FIR was sent to Udwantnagar Police
Patna High Court CR. APP (DB) No.356 of 2019 dt.03-04-2026
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Station and the Officer Incharge registered formal F.I.R. being
Udwantnagar P.S. Case No.189 of 2016 dated 27.04.2016 at
about 07:30 p.m.
59. Section 156(1) of the Cr.P.C. states as such :-
“(1) Any officer in charge of a
police station may, without the order of a
Magistrate, investigate any cognizable case
which a Court having jurisdiction over the local
area within the limits of such station would have
power to inquire into or try under the provisions
of Chapter XIII.
(2) No proceeding of a police
officer in any such case shall at any stage be
called in question on the ground that the case
was one which such officer was not empowered
under this section to investigate.”
60. Careful reading of the above provisions states
that any officer in charge of a police station is empowered to
investigate any cognizable case and the power of a police
officers to investigate cannot be called in question on the ground
that the case was one which such officer was not empowered
under Section 156(1) to investigate.
61. In these appeals, though PW-5 started
investigation at 03:00 P.M. after receiving the information of
commission of cognizable case of murder at Village-Bibiganj
within the jurisdiction of his Out Post, his action cannot be
Patna High Court CR. APP (DB) No.356 of 2019 dt.03-04-2026
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called in question on the ground that he was entrusted by the
S.H.O., Udwantnagar Police Station on 27.04.2016 at 07:30p.m.
62. In this respect also, we do not find any illegality
in respect of commencement of investigation in these appeals.
63. The learned Advocate on behalf of the
appellants also criticized the Trial Court judgment on the ground
that the appellants were not properly examined under Section
313 of the Cr.P.C. and the incriminating circumstances were not
asked to them. On perusal of the form of recording examination
of accused under Section 313 of the Cr.P.C., we find that except
the formal questions, the accused persons/ appellants were
asked the following questions:-
“iz”u%& D;k vkius xokgksa dh xokgh lquh gS\
mRrj%& th gk¡A
iz”u%& vkids fo:) lk{; gS fd vki vU;
vfHk;qDrksa ds lkFk feydj fnukad 27-04-2016 dks le;
djhc 11%45 vts fnu esa xzke chchxat esa oknh xks/ku egrks
ds njokts ij leku m}s”; ls gfFk;kj ysdj x;s] D;k
dguk gS \
mRrj%& th ughaA
iz”u%& vkids fo:) ;g Hkh lk{; gS fd vki
vius gkFk esa fy, voS/k fiLrkSy ls oknh ds iq= jru egrks
dks gkFk esa xksyh ekj fn;k ftlls mldh e`R;q gks xbZ] D;k
dguk gS \
mRrj%& th ughaA”
64. The above mentioned questions put to the
accused persons clearly suggest that they were asked to explain
the incriminating circumstances, appearing against them. There
Patna High Court CR. APP (DB) No.356 of 2019 dt.03-04-2026
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is no infirmity in the examination of the accused under Section
313 of the Cr.P.C. Therefore, the decisions of the Hon’ble
Supreme Court cited on behalf of the appellants in these appeals
are not applicable.
65. As a result of what has been stated above, we
come to the conclusion that there is no ground to over turn the
order passed by the learned Trial Judge in Sessions Trial No.214
of 2017 arising out of Udwantnagar Police Station Case No.189
of 2016.
66. Accordingly, both the appeals are dismissed.
However, there shall be not order as to costs. The judgment of
conviction and sentence are affirmed.
67. Lower Court Records be sent to the Court
below alongwith a copy of this judgment.
68. The appellants be supplied with the copy of the
judgment passed by this Court forthwith.
(Bibek Chaudhuri, J)
( Chandra Shekhar Jha, J)
mdrashid/-
AFR/NAFR
CAV DATE 30.03.2026
Uploading Date 03.04.2026
Transmission Date 03.04.2026
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