Suraj Mahaldar & Ors. vs The State Of Bihar

Date : 11-08-2026 Heard learned senior counsel for the appellants and learned Additional Public Prosecutors for the State.

Since all these three appeals arise out of the same P.S. case and are directed against the same judgment of conviction and order of sentence, they are being taken up together and are being disposed of by this common order.

These appeals have been preferred against the judgment of conviction and order of sentence dated 16.07.2018 passed by the learned 4^th Additional Sessions Judge, Katihar in Sessions Trial No. 216 of 2014 arising out of Kadwa P.S. Case No. 41 of 2014, whereby and whereunder all these eight appellants have been convicted for the offence punishable under Sections 304 Part-I and 149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.2,000/- each and in case of default of payment of fine, to further rigorous imprisonment for six months.

The prosecution case, in brief, as disclosed in the fard beyan of the informant, namely Dilip Mahaldar, is that on 08.02.2014 at about 12.00 noon, Anil Mahaldar, Sunil Mahaldar and Dulari Mahaldar assaulted informant and his cousin brother Kailash Mahaldar. After going to the police station and being referred for treatment, while they were returning home at about 4.00 P.M. and reached near the house of Anil Mahaldar, all the accused persons allegedly surrounded them and started assaulting them with lathi and danda. It is alleged that Sunil Mahaldar assaulted the informant on his head with a lathi, whereafter his younger brother Akhilesh Mahaldar came to his rescue and accused Chhanguri Mahaldar gave a blow with a wire upon Akhilesh Mahaldar, causing him to become unconscious. Thereafter, the other accused persons allegedly assaulted him with lathi and danda and accused Shiv Jatan @ Lapkan Mahaldar allegedly assaulted him with a brick on his chest. Akhilesh Mahaldar was thereafter taken for treatment and ultimately died during treatment.

On the basis of the aforesaid fard beyan, Kadwa P.S. Case No. 41 of 2014 was instituted under Sections 147, 149, 341, 323, 325 and 307 of the Indian Penal Code. Subsequently, after the death of Akhilesh Mahaldar, Section 302 of the Indian Penal Code was added. After investigation, charge-sheet was submitted against all the eight accused persons and the case was committed to the Court of Sessions.

During trial, the prosecution examined alother nine witnesses. P.W.-1, namely Kaushalya Devi; P.W.-2, namely Bhagwat Mahaldar and P.W.-3, namely Jiwachh Mahaldar supported the prosecution version. P.W.-1, Kaushalya Devi, stated that on hearing hulla she came out of her house and saw the occurrence and attributed assault upon Akhilesh Mahaldar to several accused persons with Samath, rod, brick and lathi. P.W.-2 Bhagwat Mahaldar and P.W.-3 Jiwachh Mahaldar also supported the prosecution case regarding the assault. However, both P.W.-1 and P.W.-3 are related witnesses and P.W.-3 admitted that the informant Dilip Mahaldar is his relative. P.W.-4, namely Bhojya Devi and P.W.-5, namely Satish Mahaldar, were declared hostile. P.W.-6, namely Bharat Manjhi, is the Investigating Officer, who deposed regarding the investigation and the place of occurrence. P.W.-7, namely Dilip Mahaldar, is the informant, though he reiterated the contents of his fard beyan, he made a material admission in paragraph 5 of his cross-examination that he had not seen who had assaulted the deceased Akhilesh Mahaldar. P.W.-8, namely Dr. Dayanand Roy and P.W.-9, namely Dr. Sachidanand Roy, are the doctors connected with the post mortem examination. The post mortem examination was conducted on 10.02.2014 and only one external injury was found on the deceased, described as swelling measuring 4" × 3" on the right side of the upper forehead. The doctors opined that the death was due to haemorrhage and shock resulting from injury to a vital part of the body caused by hard and blunt substance. The prosecution also exhibited several documentary evidences which are as follows:-

On the other hand, the defence examined one witness i.e. D.W.-1, namely Dr. Harinandan Roy, who proved the injury report of appellant Anil Mahaldar. The injury report shows that Anil Mahaldar had sustained two injuries on 08.02.2014, namely an incised wound on the left ear and swelling on the right knee, both opined to be simple in nature and caused by hard and blunt substance. The prosecution also exhibited several documentary evidences which are as follows:-

Learned senior counsel for the appellants has assailed the judgment of conviction and order of sentence on various grounds. It has been submitted that although all the eight accused persons are alleged to have participated in the assault and different weapons have been attributed to different accused persons, the post mortem examination found only one external injury on the deceased. It has further been submitted that the informant himself admitted that he had not seen who assaulted the deceased. Two prosecution witnesses turned hostile. Moreover, the supporting witnesses are related to the informant and the prosecution has failed to satisfactorily explain the injuries sustained by appellant Anil Mahaldar. Learned senior counsel has also relied upon the existence of the counter-case and submitted that for the same occurrence, there was case and counter-case, which creates a serious doubt regarding the prosecution version and the alleged common object of the assembly. He thus submits that prosecution has failed to prove the case beyond reasonable doubt and appellants are entitled to the benefit of doubt.

Learned Additional Public Prosecutor, on the other hand, has submitted that P.W.-1, P.W.-2 and P.W.-3 have consistently supported the prosecution case and their evidence cannot be discarded merely because they are related to the informant or the deceased. It has further been submitted that the evidence of the Investigating Officer establishes the place of occurrence and that of the doctors establishes the fatal injury and cause of death. According to the learned APP, the participation of all the accused persons in the assault stands established and hence, no interference is warranted.

Having considered the rival submissions and upon careful scrutiny of the evidence on record, it appears that the factum of occurrence and the death of Akhilesh Mahaldar during treatment are established. The medical evidence also establishes that the deceased had sustained an injury on a vital part of his body and died due to haemorrhage and shock. The question, however, is whether the prosecution has established beyond reasonable doubt the participation of all the appellants in the manner alleged.

There can be no quarrel with the proposition that the evidence of a related witness cannot be discarded merely on account of his relationship with the victim or informant. Such evidence is required to be examined on the touchstone of its intrinsic worth and consistency. In the present case, however, the evidence of the prosecution witnesses has to be considered along with the other circumstances appearing on record. The admission of P.W.-7 assumes considerable significance. The informant is the person who lodged the fard beyan containing specific allegations regarding the assault upon the deceased, but in cross-examination he admitted that he had not seen who had assaulted Akhilesh Mahaldar. This admission creates a serious circumstance requiring independent and reliable corroboration of the specific allegations against the appellants.

The prosecution has also not received support from P.W.-4 and P.W.-5, who were declared hostile. Though the testimony of a hostile witness is not required to be discarded in its entirety, the fact remains that the prosecution has not obtained corroboration from these witnesses.

Another circumstance which cannot be ignored is the medical evidence. The prosecution alleges that all the eight accused persons participated in the assault and that different accused persons assaulted the deceased with Samath, rod, brick and lathi. However, the post mortem examination records only one external injury on the deceased. This circumstance by itself may not be sufficient to reject an otherwise wholly reliable ocular account, but in the present case it assumes significance when considered along with the other infirmities in the prosecution evidence and the absence of any direct evidence from the informant regarding the identity of the person who assaulted the deceased.

The defence has also brought on record the injury report of appellant Anil Mahaldar showing that he himself sustained two injuries on the same date. The existence of the counter-case arising out of the same occurrence is also established by Exhibit-C. The prosecution has not offered any satisfactory explanation regarding the injuries sustained by the accused side. In a case where the defence asserts that the occurrence was a case and counter-case and both sides sustained injuries, this circumstance assumes relevance in assessing the prosecution version as a whole.

In the present case, the evidence, when considered cumulatively, does not inspire the requisite confidence to sustain the conviction of all the appellants. The informant, P.W.-7, admittedly did not see who assaulted the deceased; P.W.-4 and P.W.-5 did not support the prosecution; the principal ocular witnesses are related to the deceased; a counter-case arose out of the same occurrence and injuries were also found on the accused side, for which no satisfactory explanation has been offered by the prosecution. Further, the allegation is of an assault by several persons with different weapons, whereas the post mortem examination records only one external injury. Though none of these circumstances, taken individually, may be sufficient to discard the prosecution case, their cumulative effect creates a reasonable doubt regarding the identity and participation of the assailants and the common object attributed to the appellants.

In the considered opinion of this Court, the aforesaid circumstances render the prosecution case doubtful to the extent necessary for sustaining the conviction of all the appellants. The prosecution has, therefore, failed to establish the charges against the appellants beyond reasonable doubt. The appellants are consequently entitled to the benefit of doubt.

Accordingly, the judgment of conviction and order of sentence dated 16.07.2018 passed by the learned 4^th Additional Sessions Judge, Katihar in Sessions Trial No. 216 of 2014 arising out of Kadwa P.S. Case No. 41 of 2014 are hereby set aside.

All the appellants, above named, are acquitted of the charges for which they have been convicted by the learned trial Court and are discharged from the liabilities of their respective bail bonds in connection with this case.

Accordingly, all these three appeals stand allowed.

Interlocutory application(s), if any, shall also stands disposed of.