NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.379  OF 2010

Madan Mohan Mahto            ….Appellant(s)

VERSUS

State of Jharkhand  Thr. Its Chief Secretary Secretariat, Jharkhand at Ranchi  ….Respondent(s)

WITH

CRIMINAL APPEAL No.332 OF 2011

Jagmohan Mahto             ….Appellant(s)

VERSUS

State of  Bihar (now Jharkhand)  Thr. Its Chief Secretary Secretariat, Jharkhand at Ranchi  ….Respondent(s)

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                 J U D G M E N T

Abhay Manohar Sapre, J.  

1. These appeals are filed against the final

judgment and order dated 03.02.2009 of the High

Court of Jharkhand at Ranchi in Criminal Appeal

No.270 of 2001 whereby the High Court dismissed

the appeal filed by the appellants herein and

affirmed the  order  dated 05.07.2001   of the  Trial

Court  in Sessions Trial No.310 of 1993.

2.  In order to appreciate the controversy involved

in these appeals, it is necessary to set out the facts

hereinbelow.

3.  Four persons, namely,  Madan Mohan Mahto,

Jagmohan Mahto, Charka Mahto and Bihari Mahto

were prosecuted and eventually convicted for

commission of offence of murder of one Jitu Mahto

under  Section  302 read  with  Section  34 of   the

Indian Penal Code, 1860 (hereinafter referred to as

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“IPC”)  by the Sessions Judge and were accordingly

awarded life sentence.  

4. All the four accused felt aggrieved and filed an

appeal before the High Court. By impugned order,

the High Court dismissed the appeal and upheld the

order  of the  Trial  Court,  which  has  given rise to

filing of the four criminal appeals by four accused in

this Court.  

5. During pendency of the appeals, two accused,

namely, Charka Mahto and Bihari Mahto died,

therefore, two appeals, namely, Criminal Appeal

Nos. 122/2010 and 1298/2010 were dismissed as

having abated by order dated  01.02.2019.   

6. We are now concerned with the remaining two

criminal appeals, i.e., Criminal Appeal No.

379/2010 filed by accused ­ Madan Mohan Mahto

and Criminal Appeal No. 332/2011 filed by accused

­ Jagmohan Mahto.

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7. In short,   the case of the prosecution against

the appellants is as under:

8. On 19.11.1985 at around 12 noon, Kuila

Mahto (informant), Jitu  Mahto (deceased), Butru

Mahto  and  Jagran  Mahto s/o  Butru  Mahto  were

harvesting paddy  in their field.  At that  time,  four

above­named accused armed with Tangi, Pharsa

and Gun arrived at in the field.  Accused,  Madan

Mohan Mahto, was having a gun and he fired three

gunshots,  which resulted  in three  persons fleeing

away from their field. However,   Jitu Mahto could

not flee and was surrounded by the said four

accused. Accused, Jagmohan Mahto, was having a

Tangi and he,   with the use of Tangi, cut Jitu

Mahto’s right palm and accused­Bihari Mahto and

Chrka Mahto hit Jitu Mahto with the stone on his

head resulting the death Jitu Mahto on the spot.

9. The FIR was lodged on 20.11.1985 in the early

morning (6 a.m.) by Kuila Mahto (informant)

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narrating therein the incident, as mentioned above,

naming four accused including the manner in which

they committed the murder of Jitu Mahto. This led

to investigation by the police sleuths,  who recorded

the statements of  the witnesses, obtained the post­

mortem report, collected the evidence and

apprehended the accused persons.  

10. The charge sheet was filed and the case was

committed to the Sessions Court for trial. The

prosecution examined as  many as six  witnesses.

The statements of  accused persons were recorded

under Section 313 of the Code of Criminal

Procedure, 1973. The accused denied their

involvement in the alleged crime.  

11. By judgment/order dated   05.07.2001, the

Sessions Judge convicted all the four accused

persons for commission of the offence of murder of

Jitu Mahto and sentenced them for life

imprisonment under Section 302 read with Section

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34 IPC. In an appeal filed by all the four accused,

the High Court,  by impugned order,  dismissed the

appeal and confirmed the conviction and sentence

of all the four accused.

12. Heard  learned counsel for the parties.

13. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in these appeals.

14. At the outset, we consider it apposite to state

that when the two Courts below in their respective

jurisdiction have appreciated the entire ocular

evidence, then this  Court  would be very slow in

exercise of its appellate jurisdiction  under  Article

136 of the Constitution to appreciate the evidence

afresh unless the appellants are able to point out

that the concurrent finding of two Courts below is

wholly perverse or is recorded without any evidence

or is recorded by misreading or ignoring the

material evidence.  

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15. We consider it apposite to recall the apt words

of Justice Fazal Ali­a learned Judge while speaking

for the Bench  in the case of  Lachman Singh vs.

State  (AIR  1952  SC  167  at page 169)  when  his

Lordship observed “It is sufficient to say that it is not

the function of this  Court to reassess the evidence

and an argument on a point  of fact  which did not

prevail  with the  Courts  below cannot  avail  by the

appellants in this Court.”    

16. Despite this, we felt that since the leave has

been granted to the appellants to file these appeals,

it is just  and proper to peruse  the evidence and,

particularly,   the evidence of  Jagran Mahto (PW­1)

and  Kuila Mahto (PW­2).

17. These two witnesses were the eye­witnesses to

the incident. Kuila Mahto (PW­2) was the informant,

who lodged the First Information Report. The

accused persons and these two witnesses knew

each other very well.   Both these witnesses, in

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categorical terms, maintained their version in their

respective statements that the appellant­Madan

Mohan Mahto fired the gunshot and the appellant­

Jagmohan Mahto hit with a Tangi on the right palm

of Jitu Mahto and other two accused, namely,

Bihari Mahto and Charka Mahto, who are now

dead, hit on head of Jitu Mahto with stone. There

was neither any contradiction nor any inconsistency

in their statements on material version such as on

the  question  of identity of the accused,  who  hit,

where the  assault  was made and who  fired.  This

version was also stated in the FIR naming all  the

four accused.  

18. The  doctor (PW­3),  who performed  the  post

mortem, confirmed that the  weapon  used  by the

accused persons could cause the injuries and also

confirmed the areas where the injuries were caused.

It corroborates with the statements of eye­witnesses

(PWs 1 & 2).

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19. The  incident occurred in a broad daylight  in

the  afternoon. It  was an admitted  fact that there

was a rivalry going on between them on account of a

land dispute. The two Courts below believed both

these witnesses (PWs 1 & 2) and,   in our opinion,

rightly.

20.  We are unable to notice any kind of infirmity,

illegality  or  perversity in the approach of the two

Courts below  while holding that the prosecution

proved the case beyond reasonable doubt against all

the accused persons under Section 302/34 IPC. A

case of common intention under Section 34 IPC

stood fully made out against all the accused

persons because it was proved that all the accused

came together armed with lethal weapons in their

hands with an intention to attack the persons

working in the field. Three persons, named above,

including PWs 1 and 2 could manage to flee from

the field but Jitu Mahto was not able to  flee and

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was caught hold by the accused persons. He was,

therefore, brutally assaulted by all the accused

persons with the aid of Tangi and stone on his hand

and head due to which he died on the spot.  

21. Though learned counsel for the appellants in

both the appeals made attempt to argue that there

were contradictions in the evidence of these

witnesses but, as mentioned above, we are unable

to notice any material contradiction in their

evidence.

22. In view of the foregoing discussion, the appeals

are  found to be devoid of  any merit.  The appeals

thus fail and are accordingly dismissed.          

                                    .………...................................J.                                    [ABHAY MANOHAR SAPRE]                                       

    …...……..................................J.                     [DINESH MAHESHWARI]

New Delhi; February 07, 2019

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