Jharkhand High Court
Sk. Zafruddin @ Md. Zafruddin vs The State Of Bihar (Now Jharkhand) on 13 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (D.B) No. 292 of 1996 (P)
With
Cr. Appeal (D.B) No. 381 of 1996 (P)
(Against the judgement of conviction dated 28.06.1996 and the order of
sentence dated 29.06.1996 passed by the learned 1 st Additional Sessions
Judge, Godda in Sessions Case No. 77 of 1986/10 of 1995)
Sk. Zafruddin @ MD. Zafruddin
Son of Sk. Karmulli, resident of Jaju (Jajudih), PS-Dhoraiya, District-
Banka ....... ... Appellant
[In Cr. Appeal (D.B) No. 292 of 1996 (P)]
Sk. Safeed @ Sukharu son of Sk. Karmulli, resident of Village-Firozpur,
PS-Mahagama, District-Godda ..... ....... Appellant
[In Cr. Appeal (D.B) No. 381 of 1996 (P)]
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
(in both the cases)
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellants : Mr. Manoj Kumar Sah, Advocate
For the State : Mrs. Priya Shrestha, Spl.PP
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C.A.V On 28.04.2025 Pronounced on 13/06/2025
Per Sujit Narayan Prasad, J.
1. The instant appeal under section 374(2) of the Code of Criminal Procedure
is directed against the judgment of conviction dated 28.06.1996 and the
order of sentence dated 29.06.1996 passed by the learned 1 st Additional
Sessions Judge, Godda in Sessions Case No. 77 of 1986/10 of 1995
whereby and whereunder the appellants, above-named, have been
convicted under sections 148, 302/149 and sections 307/149 of the Indian
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Penal Code and sentenced to undergo RI for three years for the offence
under section 148 of the Indian Penal Code, imprisonment for life under
section 302 read with section 149 of the Indian Penal Code and RI for life
for the offence under section 307 read with section 149 of the Indian Penal
Code and all the sentences shall run concurrently.
2. At the outset, it needs to mention here that in Criminal Appeal No. 292 of
1996 out of seven, only one appellant, namely, Sk. Zafruddin @ MD.
Zafruddin is alive and the rest appellants had died during pendency of the
appeal. Vide orders dated 18.6.2019, 24.09.2019 and 27.01.2025 passed in
the present proceeding, the present criminal appeal qua the appellants,
namely, Sk. Maniruddin, Sk. Mansoor, Sk. Suleman, Sk. Sahabuddin @
MD. Shahabuddin and Sk. Shamsuddin @ Md. Shamsuddin stands abated.
3. The prosecution story in brief as per the allegation made in the fardbeyan
by Fakruddin, the informant, reads as under:
(i) On 17.10.80 the informant was deposing in the hospital at Godda
that on 16.10.1980 at 7 AM in the morning he had gone to harvest
paddy crops along with his father Sk. Badruddin and brother-
Naziruddin. While they were harvesting paddy his brother-in-law,
named, Mazaharul Haque (PW2) was being chased by accused
persons. It had further been alleged that Sk. Karmulli armed with
Bhala, Sk. Safeed @ Sukharu armed with Bomb, Sk Zafir armed
with lathi, Sk Shahabuddin armed with bomb, Sk Allauddin armed
with pipe gun, Sk. Suleman armed with lathi, Sk. Shamsuddin
armed with bomb, Sk. Faizuddin armed with lathi, Sk. Tauhid and
Sk. Noor Mohammad armed with lathi, Sk. Maniruddin armed with
bomb, Sk. Mansoor armed with lathi and two to three other
unknown persons armed with lathi and Bhala were chasing Md.
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Mazharul Haque towards the place where the informant was
harvesting paddy. As soon as Md. Mazharul Haque came to the east
of the field of harvesting, accused, named, Safeed @ Sukharu hurled
bomb hitting Mazharul Haque on his back and Karmulli hit him
with lathi. Other accused persons assaulted him with lathi. When
Mazharul Haque fell down the accused persons named above came
to the paddy field and exhorted that the informant and others be
killed. Sk. Karmulli, Sk. Zafir and other accused persons assaulted
his father Badaruddin with Bhala and lathi. His father fell down and
became senseless. Thereafter, Sk. Karmulli gave Bhala blow to the
informant and Sk. Safeed @ Sukharu hurled bomb on him. Sk. Zafir
and other accused persons assaulted him with lathi. The informant
also fell unconscious. The splinters of bomb hit the informant on his
stomach. The informant and others lied senseless in the field.
(ii) Later on village Chaukidar Khoka Paswan and some others put them
on cot and carried to Basantrai out post. From there they were
shifted to Pathargama hospital. As they were senseless, they could
not give any description about the occurrence. Sk. Badruddin died
because of assault near place, named, Nunajore. The informant and
others were carried to Godda hospital where they were given
treatment. The witness to the occurrence is named, Sk. Gulam
Rashul, Sk. Shahabuddin and Sk. Marshud etc.
(iii) After investigation, the police submitted the charge sheet against the
appellants for offences under sections 302/149, sections 307/149
IPC and section 148 IPC, thereafter, the case was committed to the
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court of Sessions. The statements of the appellants were recorded
under Section 313 of Cr.P.C.
4. Accordingly, the trial proceeded and the appellants were found guilty by
the learned trial Court for the aforesaid offences referred hereinabove. The
aforesaid order of conviction and sentence is under challenge in these
appeals.
Submission of the learned counsel for the appellants:
5. Learned counsel for the appellants has taken the following grounds for
interfering with the finding recorded by the learned trial Court in the
impugned judgment:
(i) The prosecution has miserably failed to establish the charge
said to be proved beyond all reasonable doubt and the learned trial
Court has also failed to appreciate that it is not a case where any
ingredient of Section 302 I.P.C. is attracted.
(ii) The further ground has been taken that the conviction is under
sections 302 and 307 of the Indian Penal Code by taking aid of
section 149 IPC but no any evidence in order to substantiate the
common object among the appellants to the deceased has led by
the prosecution, as such, there cannot be any conviction against
the appellants, in absence of any specific overt act said to be
committed by these appellants even if the entire prosecution
version will be taken in to consideration in entirety.
(iii) The argument has been advanced so far as the conviction
under section 307 of the Indian Penal Code against these
appellants is concerned.
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(iv) It has been stated that as per the allegation made in the F.I.R
the deceased was assaulted by sharp cutting weapon like Bhala and
as per the medical evidence death was caused due to the incised
wound and since the present appellants were not armed with any
sharp cutting weapon therefore conviction of the appellants under
section 302 IPC with the aid of section 149 IPC is not sustainable.
(v) It has been contended that as per the allegation, the appellant,
namely, Sk. Safeed @ Sukharu has hurled bomb over the back of
Mazharul Haque upon which he fell down, but there is no death
caused due to hurling of bomb by this appellant and further the
charge has not been framed under Section ¾ of the explosive
substance Act .
(vi) It has further been contended that it had been alleged that the
appellant, namely, Sk. Safeed @ Sukharu hurled bomb upon PW2
but as per the medical evidence it would be evident that the opinion
was reserved on the point of injury sustained by the bomb.
(vii) It has been contended that as per the allegation made in the
F.I.R there is no allegation against the appellant, namely, Sk.
Zafruddin @ Md. Zafruddin that he was involved directly in the
alleged crime and, as such, in absence of any specific overt act said
to be committed by the appellant, namely, Sk. Zafruddin @ Md.
Zafruddin conviction against the said appellant is not sustainable.
6. The learned counsel for the appellants, based upon the aforesaid grounds,
has submitted that the judgment of conviction passed by the learned trial
Court convicting the appellants under sections 148, 302/149 and 307/149
of the Indian Penal Code, therefore, is fit to be quashed and set aside.
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Submission of the learned Spl. Public Prosecutor for the State:
7. While defending the judgment of conviction and sentence, the learned Spl.
Public Prosecutor appearing for the State has defended the impugned
judgment of conviction and order of sentence by taking the following
grounds:
(i) The conviction so far as under section 302 of the Indian
Penal Code against the surviving appellants, namely, Sk.
Zafruddin @ Md. Zafruddin and Sk. Safeed @ Sukharu does not
suffer from an error, since, ample evidence has been produced by
the prosecution. However, she has admitted the fact after going
through the testimony of PW1, the informant, that the specific
attributability of commission of crime of murder of the deceased
is upon the accused-Sk. Karmulli (since dead) who had assaulted
the deceased with Bhala due to which the father of the informant
had died.
(ii) The argument has been advanced that even accepting the
aforesaid specific attributability said to be committed by Sk.
Karmulli and Sk. Jamir who are not facing the trial, but even then
the attributability committed by Sk. Zafruddin @ Md. Zafruddin
and Sk. Safeed @ Sukharu, the appellants herein, who have
assaulted the deceased and as per the postmortem report, since the
attributability is there to attract the ingredient of section 302 of the
Indian Penal Code, hence, they are liable to be punished under
section 302 of the Indian Penal Code with the aid of Section 149
IPC and, as such, the impugned judgment so far as the appellants,
namely, Sk. Zafruddin @ Md. Zafruddin and Sk. Safeed @
Sukharu is concerned, the same does not require any interference.
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(iii) The argument has been advanced that the ample material
has been produced by the prosecuting agency who established the
case under sections 302/149, 307/149 of the Indian Penal Code so
far as the appellant, namely, Sk. Md. Safeed @ Sukharu is
concerned since the fact has come in course of evidence produced
by PW1, the informant, that he along with his father (deceased)
and Md. Mazharul Haque have brutally been assaulted by the
accused persons.
(iv) The argument has also been advanced that PW1 (the
informant) has supported the prosecution version of sustaining
assault by these two appellants and to that effect injury report is
also available showing the injury sustained by him. Hence, the
conviction so far as the appellants, namely, Sk. Zafruddin @ Md.
Zafruddin and Sk. Safeed @ Sukharu under section 307/149 of the
Indian Penal Code is concerned, the same cannot be said to suffer
from an error.
8. The learned State counsel, based upon the aforesaid premise, has
submitted that the impugned judgment so far as these appellants is
concerned, does not suffer from any error and does not require any
interference both under sections 148, 302/149 and 307/149 of the Indian
Penal Code, hence the instant appeal is fit to be dismissed.
Analysis
9. We have heard learned counsel for the parties, perused the documents
available on record as also the finding recorded by the trial Court in the
impugned judgment.
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10. We have also gone through the testimonies of the witnesses as available
in the Trial Court Records as also the exhibits appended therewith.
11. Learned trial Court, based upon the testimonies of witnesses, has passed
the judgment of conviction and has convicted the appellants under Section
148, 302/149 and Section 307/149 IPC and sentenced them to undergo
imprisonment for life for the offence under Section 302 r/w Section 149
IPC and further sentenced to undergo imprisonment for life for the offence
under section 307 r/w section 149 IPC and both the sentences shall run
concurrently.
12. This Court, before considering the argument advanced on behalf of the
parties, is now proceeding to consider the testimonies of witnesses which
have been recorded by the learned trial Court.
13. It is evident from record that in order to substantiate the case, the
prosecution had altogether examined 11 witnesses and they were PW1-
Md. Fakruddin (informant), PW2-Sk Mazharul Haque(injured victim),
PW3-Md. Naziruddin (son of the deceased), PW4- Khokha Paswan
(chaukidar), PW5- Zubaida Khatoon (wife of the informant), PW6-Sk.
Lateef (hearsay witness), PW7-Haneef (tendered witness), PW8-Md.
Ghulam Rasool, PW9- Md. Tahir, PW10- Dr. Vijay Kumar Bhagat who
was colleague of Dr. Anirudh Mandal who prepared the injury report and
conducted postmortem examination over the dead body and PW11-Jagdish
Chandra Yadav, is the third Investigating Officer of the case and had
conducted investigation from para-14 to 23.
14. PW1 is the informant who said to be an eye witness. He had supported the
factum of assault upon the deceased by the accused persons. He has
deposed that the deceased is his father and on 16.10.1980 at 7 AM, he
along with his father (deceased), brother-Naziruddin and wife-Bibi Khetu
Nisa was harvesting paddy crop of his plot. He stated that all of a sudden
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he saw that his brother-in-law-Mazharul Haque was being chased by 12-
14 accused persons. He identified Sk. Karmulli, Sk. Safeed, Sk. Zafir, Sk.
Tauhid, Sk. Suleman, Sk. Maniruddin, Sk. Faizuddin and Sk. Mansoor out
of them who were chasing his brother-in-law. He did not identify other 2-
3 persons who were accompanying the accused. He deposed that when his
brother-in-law reached near the Eastern side of the paddy field, then
accused-Sk. Safeed hurled a bomb hitting him on his back upon which he
fell down. Thereafter, Sk. Karmulli assaulted him with Bhala. Sk. Zafir
assaulted him with lathi along with other accused persons due to which
Mazharul became unconscious. The informant and his family members
tried to flee from the place of occurrence but they were caught by the
accused persons who attacked upon them. The accused persons attacked
Sk. Badruddin and assaulted him with Bhala and lathi. Thereafter, they
attacked upon the informant. Sk. Karmulli assaulted the informant with
Bhala and other with lathi. Thereafter, the accused persons fled away with
the crops grown in the paddy field. On raising alarm, villagers and
chaukidar of the village came at the place of occurrence and took them to
Basantrai OP from where they were shifted to Pathargama hospital for
their treatment. On the way, his father succumbed to his injury caused by
the accused persons.
This witness has deposed that he gave his fardbeyan before the police on
the basis of which F.I.R was lodged against the accused persons. This
F.I.R. has been marked as Exhibit-1 and two witness, namely, Sk. Suleman
Rashul and Md. Maniruddin have put their signature over the same which
have been marked as Ext.2 and 2/1.
In cross-examination, this witness has admitted that there was a land
dispute between his family and the accused persons, namely, Sk. Safeed,
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Sk. Zabir and Sk. Karmulli who are his agnates (Gotiya) and a suit for
partition being Title Suit No.1/89 was pending for the same. He further
stated that the rest accused persons are the relatives of these accused
persons.
At para-4 of his cross-examination, this witness has stated that when
the accused person came chasing Mazharul Haque, informant and others
were harvesting the paddy facing to east. He further stated that while Sk.
Safeed hurled bomb he was facing west and the victim Mazharul Haque
was 10 cubic away from him who was also facing west. He also stated
that when the deceased was attacked by Sk. Karmulli the accused was
facing west and he was facing east. He further stated that he was hit by
Bhala while he was standing.
15. PW2 is Sk. Mazharul Haque, the injured witness, who is brother-in-law
of the informant. He has fully supported the prosecution version and
corroborated the evidence of PW1. He has deposed that when he was at
the door of in laws’ house of his sister, the accused persons, namely,
Karmulli, Safeed, Zafir, Shamsuddin, Faizuddin, Suleman, Mansoor,
Maniruddin, Shahabuddin, Noor Mohammad, Tauhid and others came
there armed with lathi, bhala, pipe-gun and bomb. They exhorted that he
(this witness) should be assaulted. He fled away towards the paddy filed
of Sk. Badruddin and the accused persons chased him and reached there.
While he came on the ridge of the field the accused hurled a bomb from
behind hitting him on his back. He fell down. Thereafter, Sk.Karmulli gave
him the Bhala blow hitting him on his ring finger of the left hand.
Thereafter, the accused persons also assaulted him with Bhala upon which
he became unconscious. When he got consciousness, he was informed by
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Sultan, Gulam Rasul Latif, Hanif and Nazir that after the occurrence the
accused person assaulted his sister’s father-in-law, namely, Badruddin
(deceased) and brother-in-law (informant). He was also informed that
Badruddin died on the way to hospital. He has stated that his statement
was recorded on 17.10.1980 in the hospital.
During cross-examination, this witness has stated about the position of
the door of the in laws’ house of his sister, the position of paddy field and
about the paddy grown therefrom. He has further stated that on raising
alarm, the villagers came there and after that, the accused persons fled
away from the place of occurrence.
16. PW3-Md. Naziruddin is another son of the deceased who has fully
supported the prosecution case. He has deposed about the occurrence and
stated that he was present at the place of occurrence.
In his cross-examination, he has denied the suggestion that he has
falsely narrated the occurrence. He stated that he was present at the place
of occurrence and cutting the paddy crop. He has stated that the deceased
was assaulted by the accused person due to which he died.
17. PW4-Khokha Paswan was the Choukidar of the village. He has deposed
that he was informed by Sk. Fakruddin (informant) about the occurrence.
He did not remember the date or month of the occurrence. He deposed that
upon information by Sk. Fakruddin when he reached the place of
occurrence, he saw that villagers brought Badruddin (the deceased) on a
cot and on the way to hospital, he succumbed to his injury.
During cross-examination, this witness has stated that the deceased has
not taken the name of accused persons before him and only stated that
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they were outsiders. He further stated that the deceased became
unconscious soon thereafter and later on he died.
18. PW5-Zubeda Khatoon is the wife of the informant. She has also
corroborated the factum of assault upon her brother and father-in-law by
the accused persons. She has deposed that she was present at the place of
occurrence at that time. She has deposed that the accused Safeed @
Sukhru, Zafir, Karmulli, Shahabuddin, Maniruddin and others assaulted
her brother with bomb, lathi and Bhala due to which he fell down. She has
further stated that thereafter the accused persons assaulted her father-in-
law, namely, Sk. Badruddin and her husband (informant) with lathi and
Bhala due to which her father-in-law and husband got injuries and later on
her father-in-law succumbed to injury on the way to hospital.
During cross-examination, this witness has narrated about the details
and location of place of occurrence. In para-2 of her cross-examination,
this witness has stated that her brother fell down on the eastern boundary
of the field. She identified the accused persons who are present in the dock.
19. PW6-Lateef is a hearsay witness and he deposed that he had seen the
deceased lying on a cot in injured position who died later on.
During cross-examination, he denied the suggestion that he is an agnate
(Gotiya) of the informant.
20. PW7-Haneef was tendered for cross-examination.
21. PW8-Md. Ghulam Rasul was the person who put his signature on the
fardbeyan of the informant which has been marked as Ext-2. He has
deposed that the informant is his brother-in-law. He has corroborated the
statement of the informant and narrated the entire prosecution story. He
has stated that the accused persons-Safeed, Karmulli, Allauddin,
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Shahabuddin, Shamsuddin, Zafir and others while chasing PW2 came to
the place of occurrence and started assaulting him with bomb, lathi and
Bhala. He has deposed that Safeed hurled bomb hitting his brother on his
back upon which he fell down on the earth. Thereafter, the accused persons
assaulted him with lathi and Bhala. He has further deposed that the accused
persons thereafter assaulted Badruddin and the informant. He has deposed
that Karmulli gave Bhala blow. He has identified the accused persons in
the dock. He has further stated that all the three injured persons, namely,
Mazharul Haque, Fakruddin and Badruddin were brought to Basantrai OP
where they reached at about 3-4 PM. After 5 to 10 minutes, they started to
the hospital as there was no S.I of Police to record the fardbeyan. They
brought the injured to Pathargama hospital and on the way Badruddin
succumbed to his injury. He further deposed that he along with the injured
and the deceased came to Godda at 9 PM where the police official came
to record the statement of the informant. This witness has deposed that due
to absence of the police official at Basantrai OP and at Pathargama PS the
fardbeyan was recorded by the SI of Police, Pathargama at Godda Hospital
on the very next day.
22. PW9-Md. Tahir is said to be an eye witness. He has deposed that while he
was coming from the village-Miraandichak to the place of occurrence
situated at village-Nakta, he saw the occurrence. He has stated that Karulli,
Safeed, Zabir, Allauddin, Shamsuddin, Shahabuddin, Soleman, Noor
Mohammad, Tauhid and Hafizuddin came at the place of occurrence. The
accused-Karmulli gave bhala blow to Badruddin, Mazharul Haque was hit
with bomb on his back and other accused persons started assaulting the
injured persons by means of lathi. He has also identified the accused
persons.
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23. PW10-Dr. Vijay Kumar Bhagat was a colleague of Dr. Anirudh Mandal
who conducted postmortem examination over the dead body and examined
the witness. Though this witness has not conducted the postmortem
examination over the dead body but he was with Dr. Anirudh Mandal who
had examined the injured and conducted the postmortem examination over
the dead body. This witness has identified the signature of Dr. Anirudh
Mandal put over the injury report and postmortem examination report.
During his cross-examination, this witness has stated that postmortem
report has not been prepared before him and he is not knowing the injured
persons personally. He has further stated that in the injury report of the
informant, there is no mention of injury caused by any explosive
substance. He has further stated that in the postmortem examination report
of the deceased, there is no report about any injury caused by hard and
blunt substance or any explosive substance.
24. PW11-Jagdish Chandra Yadav is the investigating officer of the case. He
has stated that he has not investigated the case from beginning as before
him, his two predecessor police officers were investigating the case. This
witness has identified the signature of the police officer who recorded the
statement of the informant and stated about the case as recorded in the case
diary.
25. Dr. Anirudh Mandal has examined the injured witnesses on 17.10.96 at
the hospital at Godda and conducted postmortem examination over the
dead body. After examination of the informant, he has found the following
injuries on his person;
(1) One penetrating wound ½ ” x 1″ x 1″ on the surface of R
Palm;
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(2) One penetrating wound ½ “x 1″ x 1″ over left palm,
(3) One incised wound 1″ x 2″ x 1″ over the R leg,
(4) One lacerated wound 1″ x ½ ” x ½” over L leg,
(5) One bruise ½” x ½” x over middle of R thigh,
All the injuries are simple in nature.
In the opinion of the doctor, injury nos.1 and 2 by sharp cutting pointed
weapon. Injury Nos. 3 by sharp cutting weapon, and injury Nos. 4 and 5
by hard and blunt substance.
After examination of PW2, he has found the following injuries on his
person;
(1) One bruise 1″ x ½ ” over R shoulder,
(2) One bruise 1″ x ½ ” over L side of the chest,
(3) Two penetrating wounds size ½ “x 1″ x 1″,
Size 1″ x 1″ x ½ ” over leaf of L palm,
(4) One laceration 3″ x 2 ” with the tattooing mark around the
laceration over the middle of back.
(5) One bruise size 1″ x ½” over back of R palm,
(6) One lacerated wound 1″ x ½” x1″ over R leg,
(7) One bruise size ½” x ½” over L ankle.
All the injuries are simple in nature.
In the opinion of doctor, Injury Nos.1, 2, 5, 6 and 7 caused by hard
and blunt substance. Injury No.3 by sharp cutting pointed
weapon. Injury No.4 -opinion is reserved.
26. Dr. Anirudh Mandal, who conducted the post-mortem examination on the
dead body of Badruddin has found the following ante-mortem injuries:
(1) One penetrating wound ½ “x½ “x2” over the R elbow,
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tibia along the trachea of low end of R tibia.
(3) One penetrating wound ½ “x1″ x2″ over middle of L forearm
(4) One penetrating wound 1” ½ “x1” over the R chest passing
through the abdomen muscle inside.
All the injuries were grievous. In the opinion of the doctor all injuries
were caused by sharp cutting pointed weapons. In the opinion of the doctor
the death was due to shock and hemorrhage as a result of injury succumbed
alone which were sufficient to cause death in ordinary course.
27. Thus, from the aforesaid it is evident that the learned trial Court after
taking aid of the Section 149 based upon the testimony of the prosecution
witnesses had passed the order of conviction of the present appellants
under section 302 of the IPC.
28. At this juncture it would be apt to discuss the essential requisite for the
application of Section 149 IPC. Section 149 IPC reads as under:
“149. Every member of unlawful assembly guilty of offence
committed in prosecution of common object.– If an offence
is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such
as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who, at
the time of the committing of that offence, is a member of the
same assembly, is guilty of that offence.”
29. From bare perusal of the aforesaid, it is evident that in order to attract the
provision of Section 149, following ingredients are to be essentially
established:
(i) There must be an unlawful assembly.
(ii) Commission of an offence by any member of an unlawful
assembly.
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(iii) Such offence must have been committed in prosecution of the
common object of the assembly; or must be such as the members of the
assembly knew to be likely to be committed.
30. If these three elements are satisfied, then only a conviction under Section
149 IPC, may be substantiated, and not otherwise. None of the Sections
147, 148 and 149 applies to a person who is merely present in any unlawful
assembly, unless he actively participates in the rioting or does some overt
act with the necessary criminal intention or shares the common object of
the unlawful assembly.
31. In “Mukteshwar Rai v. State of Bihar“, 1992 Supp (1) SCC 727, the
accused persons were alleged to have formed an unlawful assembly,
gathered in a village and set some houses on fire and ransacked. Two
persons died as they got burnt and two could not be traced. The Hon’ble
Apex Court agreed with the finding of the High Court as to the formation
of the unlawful assembly but as to the finding that the common object of
the unlawful assembly was to commit murder took somewhat a different
view and observed as under :
“4. … the specific overt acts attributed to A-1 and five others who are
said to have actively participated in setting the fire and thrown some of
the victims into the fire stand disbelieved. It may also be noted that none
of the PWs is injured and we find from the judgment of the High Court
that none of the witnesses say that any one of these appellants were
armed. The learned Judge has extracted the incriminating part in each
of the witnesses against these appellants. It stated that these accused
were identified by those respective witnesses mentioned therein in
discussing the case against each of the accused. There is nowhere any
mention that any one of these appellants was armed. In such a situation,
the question is whether these appellants also had a common object of
committing the murder. We have given earnest consideration to this
aspect. Taking a general picture of the case and after a close scrutiny
of the evidence we find that two persons were charred to death. This
must have been the result of setting fire to those houses. With regards17
2025:JHHC:15578-DBthe other two missing persons it cannot be concluded that they were
murdered in the absence of any iota of evidence. Under these
circumstances, we find it extremely difficult to hold that a common
object of the unlawful assembly was to commit murder.”
32. We would also like to quote the following passage from the judgment
rendered by the Hon’ble Apex Court in the case of “Thakore Dolji
Vanvirji v. State of Gujarat“, 1993 Supp (2) SCC 534 which reads as
under:
“3. … Now the question is whether all the accused would constructively
be liable for an offence of murder by virtue of Section 149 IPC. So far
as A-1 is concerned, it is the consistent version of all the eyewitnesses
that he dealt a fatal blow on the head with a sword and the medical
evidence shows that there was a fracture of skull and the blow must
have been very forceful because even the brain was injured. Therefore,
he was directly responsible for the death of the deceased and the High
Court has rightly convicted him under Section 302 IPC. Now coming
to the rest of the accused, all the eyewitnesses have made an omnibus
allegation against them. Even A-2, according to the eyewitnesses, gave
only one blow and that the remaining accused gave stick-blows. All
these injuries were not serious and were simple. The injury attributed to
A-2 was on the cheek and the doctor did not say that it caused any
damage. So it must also be held to be a simple injury. Then we find only
a bruise and an abrasion on the right arm and some bruises on the back.
These injuries did not result in any internal injuries. There was not even
a fracture of rib. Therefore, they must also be simple injuries. It is only
Injury 1 which was serious and proved fatal. Therefore, the question is
whether under these circumstances common object of the unlawful
assembly was to cause the death of the deceased and whether every
member of the unlawful assembly shared the same? No doubt Section
149 IPC is wide in its sweep but in fixing the membership of the
unlawful assembly and in inferring the common object, various
circumstances also have to be taken into consideration. Having regard
to the omnibus allegation, we think it is not safe to convict every one of
them for the offence of murder by applying Section 149 IPC. On a
careful examination of the entire prosecution case and the surrounding
circumstances, we think the common object of the unlawful assembly
was only to cause grievous hurt. But A-1 acted in his own individual
manner and caused one injury with the sword which proved fatal.”
18
2025:JHHC:15578-DB
33. Thus, it is the settled proposition of law that in fixing the membership of
the unlawful assembly and in inferring the common object, various
circumstances also have to be taken into consideration and just on the basis
of the omnibus allegation, it is not safe to convict every one of them for
the alleged offence by applying Section 149 IPC.
34. Further, it is settled position of law that the members of the unlawful
assembly really had the common object to cause the murder of the
deceased has to be decided on the facts and circumstances of each case.
The nature of weapons used by such members, the manner and sequence
of attack made by those members on the deceased and the circumstances
under which the occurrence took place are the factors to decide as to
whether the accused had common object. It is an inference to be deduced
from the facts and circumstances of each case.
35. Applying, the aforesaid settled principle in the present case there is no
concrete evidence to prove that the present appellants had any common
object to commit the murder of deceased.
36. It needs to refer herein that as per the injury report of the PW1 it is evident
that all the injuries were simple in nature as such question herein arises
that if the common object of the alleged unlawful assembly was murder,
then why only simple injuries had been caused to him by 12-14 accused
persons.
37. Further, after going through injury report of PW2 victim and injured
eyewitness, it is evident that the doctor had opined that all the injuries
were simple in nature and opinion was reserved for the injury no. iv which
was alleged to be caused by hurling of Bomb by the present appellant
namely Sk. Safeed @ Sukharu.
19
2025:JHHC:15578-DB
38. The expression “in prosecution of the common object” occurring in this
section postulates that the act must be one which has been done with a
view to accomplish the common object attributed to the members of the
unlawful assembly. This expression is to be strictly construed as
equivalent to in order to attain common object. It must be immediately
connected with common object by virtue of nature of object. In the instant
case, even the evidence is not laid on this aspect.
39. Thus, from the aforesaid it can safely be inferred that there was no
common object among the accused person including the present appellant
to cause murder of the aforesaid person. Therefore, after going through
the evidence in detail, we are of the opinion that the prosecution evidence
is not sufficient to conclude that any conspiracy was hatched by the
present appellants with common object to cause the death of deceased.
40. Before adverting to the fact of the case it would be apt to refer herein that
it is cardinal principle of the criminal jurisprudence that that in the
criminal trial, there cannot be any conviction if the charge is not being
proved beyond all reasonable doubts, as has been held in the case of
“Rang Bahadur Singh & Ors. Vrs. State of U.P.”, (2000) 3 SCC 454,
wherein, at paragraph-22, it has been held as under:-
“22. The amount of doubt which the Court would entertain regarding
the complicity of the appellants in this case is much more than the level
of reasonable doubt. We are aware that acquitting the accused in a case
of this nature is not a matter of satisfaction for all concerned. At the
same time we remind ourselves of the time-tested rule that acquittal of
a guilty person should be preferred to conviction of an innocent person.
Unless the prosecution establishes the guilt of the accused beyond
reasonable doubt a conviction cannot be passed on the accused. A
criminal court cannot afford to deprive liberty of the appellants,
lifelong liberty, without having at least a reasonable level of certainty
that the appellants were the real culprits. We really entertain doubt
about the involvement of the appellants in the crime.”
20
2025:JHHC:15578-DB
41. Likewise, the Hon’ble Apex Court in the case of “Krishnegowda & Ors.
Vrs. State of Karnataka”, (2017) 13 SCC 98, has held at paragraph-26 as
under:-
“26. Having gone through the evidence of the prosecution witnesses and
the findings recorded by the High Court we feel that the High Court has
failed to understand the fact that the guilt of the accused has to be
proved beyond reasonable doubt and this is a classic case where at
each and every stage of the trial, there were lapses on the part of the
investigating agency and the evidence of the witnesses is not
trustworthy which can never be a basis for conviction. The basic
principle of criminal jurisprudence is that the accused is presumed to
be innocent until his guilt is proved beyond reasonable doubt.”
42. In the backdrop of the aforesaid settled position, we are now re-adverting
to factual aspects of the instant case. Admittedly herein the investigating
officer of the instant case who had investigated major part of the case has
not been examined. Further the doctor who had conducted autopsy of the
dead body of the deceased and prepared the injury report of PW1 and PW2
has also not been examined, however, the post-mortem report as well as
injury report of the victims are available on the record. It needs to refer
herein that although there is allegation against the appellant, namely, Sk.
Safeed @ Sukharu that he had hurled bomb on PW2 but the charges under
Section ¾ of the explosive substance has not been framed.
43. From the post-mortem report of the deceased it is evident that death has
been caused due to penetrating wound which has been inflicted by sharp
cutting pointed weapons. As per the prosecution witnesses, particularly,
PW1 and PW2 who are the injured eyewitnesses and their presence at the
place cannot be doubted have categorically stated that Sk. Karmulli (since
dead) and other accused persons were armed with Bhala (pointed iron
weapon with long handle of wood/iron) and they had assaulted the
deceased by means of Bhala and lathi. The statement of these witnesses
21
2025:JHHC:15578-DB
has been found substantiated by the post mortem report wherein the doctor
has found the penetrating wound on the body of the deceased but so far,
the assault made by lathi is concerned, the doctor has not found any
lacerated wound on the body of deceased. Therefore, from the aforesaid it
is evident that the present appellants have not caused murder of the
deceased because it has been alleged against the appellant, namely, Sk.
Zafruddin @ MD. Zafruddin that he was armed with lathi and another
appellant, namely, Sk. Safeed @ Sukharu hurled bomb upon PW2. It
requires to refer herein that as per postmortem report death of the deceased
has not been caused by the explosion of the bomb.
44. Based on the discussion made herein above, it is evident that as per the
allegation made in the F.I.R the deceased was assaulted by sharp cutting
weapon like Bhala and as per the medical evidence death was caused due
to the incised wound and since the present appellants were not armed with
any sharp cutting weapon, therefore, conviction of the appellants under
section 302 IPC with the aid of section 149 IPC is not sustainable.
45. So far, the conviction of the appellants under Section 307/149 of IPC is
concerned, it is evident from the injuries report of the PW1 and PW2 that
all the injuries were simple in nature. It has further been contended that it
had been alleged that the appellant, namely, Sk. Safeed @ Sukharu hurled
bomb upon PW2 but as per the medical evidence it would be evident that
the opinion was reserved on the point of injury sustained by the bomb.
46. At this juncture it would be apt to refer herein Section 307 IPC which reads
as under:
“307. Attempt to murder.–Whoever does any act with such intention
or knowledge, and under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten22
2025:JHHC:15578-DByears, and shall also be liable to fine; and if hurt is caused to any person
by such act, the offender shall be liable either to imprisonment for life,
or to such punishment as is hereinbefore mentioned.
Attempts by life convicts. –When any person offending under this
section is under sentence of imprisonment for life, he may, if hurt is
caused, be punished with death.
47. The first part of Section 307 refers to “an act with such intention or
knowledge, and under such circumstances that, if he by that act caused
death, he would be guilty of murder”. The second part of Section 307,
which carries a heavier punishment, refers to “hurt” caused in pursuance
of such an “act”.
48. In “State of Maharashtra v. Balram Bama Patil“, (1983) 2 SCC 28, the
Hon’ble Apex Court has observed that it is not necessary that a bodily
injury sufficient under normal circumstances to cause death should have
been inflicted, for ready reference the relevant paragraph is being quoted
as under:
“9. … To justify a conviction under this section it is not essential that
bodily injury capable of causing death should have been inflicted.
Although the nature of injury actually caused may often give
considerable assistance in coming to a finding as to the intention of the
accused, such intention may also be deduced from other circumstances,
and may even, in some cases, be ascertained without any reference at
all to actual wounds. The section makes a distinction between an act of
the accused and its result, if any. Such an act may not be attended by
any result so far as the person assaulted is concerned, but still there
may be cases in which the culprit would be liable under this section. It
is not necessary that the injury actually caused to the victim of the
assault should be sufficient under ordinary circumstances to cause the
death of the person assaulted. What the Court has to see is whether the
act, irrespective of its result, was done with the intention or knowledge
and under circumstances mentioned in this section. An attempt in order
to be criminal need not be the penultimate act. It is sufficient in law, if
there is present an intent coupled with some overt act in execution
thereof.”
(emphasis supplied)
23
2025:JHHC:15578-DB
49. In “State of M.P. v. Saleem“, (2005) 5 SCC 554, the Hon’ble Apex Court
has held which reads as under:
“13. It is sufficient to justify a conviction under Section 307 if there is
present an intent coupled with some overt act in execution thereof. It is
not essential that bodily injury capable of causing death should have
been inflicted. The section makes a distinction between the act of the
accused and its result, if any. The court has to see whether the act,
irrespective of its result, was done with the intention or knowledge and
under circumstances mentioned in the section. Therefore, an accused
charged under Section 307 IPC cannot be acquitted merely because the
injuries inflicted on the victim were in the nature of a simple hurt.”
50. In “Jage Ram v. State of Haryana” (2015) 11 SCC 366, the Hon’ble
Supreme Court has held that to establish the commission of an offence
under Section 307, it is not essential that a fatal injury capable of causing
death should have been inflicted, for ready reference the relevant
paragraph is being quoted as under:
“12. For the purpose of conviction under Section 307 IPC, the
prosecution has to establish (i) the intention to commit murder; and (ii)
the act done by the accused. The burden is on the prosecution that the
accused had attempted to commit the murder of the prosecution witness.
Whether the accused person intended to commit murder of another
person would depend upon the facts and circumstances of each case.
To justify a conviction under Section 307 IPC, it is not essential that
fatal injury capable of causing death should have been caused.
Although the nature of injury actually caused may be of assistance in
coming to a finding as to the intention of the accused, such intention
may also be adduced from other circumstances. The intention of the
accused is to be gathered from the circumstances like the nature of the
weapon used, words used by the accused at the time of the incident,
motive of the accused, parts of the body where the injury was caused
and the nature of injury and severity of the blows given, etc.”
51. It is evident from the aforesaid settled proposition of law that proof of
grievous or life-threatening hurt is not a sine qua non for the offence under
Section 307 of the Penal Code and the intention of the accused can be
24
2025:JHHC:15578-DB
ascertained from the actual injury, if any, as well as from surrounding
circumstances. Among other things, the nature of the weapon used and the
severity of the blows inflicted can be considered to infer intent.
52. Thus, it is apparent that whoever does any act, with the intention or
knowledge, which may cause death and in furtherance to the said intention
and knowledge, he was doing an act towards it. However, it is required to
be seen by the evidence brought on record by the prosecution whether the
ingredients to prove, the case of prosecution beyond reasonable doubt, the
charge under Sections 307 IPC have been established.
53. In the backdrop of the aforesaid settled proposition of law, now we are
adverting to the facts of the case. As per the F.I.R there is no allegation
against the appellant, namely, Sk. Zafruddin @ Md. Zafruddin that he was
involved directly in the alleged crime. However, in the testimony of the
prosecution witness it has come that he has assaulted the injured witnesses
with lathi but from the scrutiny of the testimony of the witnesses, it is
evident that there is general and omnibus allegation against the present
appellant. However, it is evident from the testimony of the prosecution
witnesses and as discussed herein above that simple injury was caused on
the persons i.e. PW1 and PW2. As per the injury report of PW1 one
lacerated wound 1″ x ½ ” x ½” over L leg was found and further, other
injuries incised or penetrating in nature. The injuries which was lacerated
may be attributed to the present appellants but other injuries cannot be
attributed to the present appellants. Further as per the injury report of PW2
it is evident that all the injuries were simple in nature and opinion was
reserved in respect to injury no.4 which was one laceration of size of 3″ x
2 ” with the tattooing mark around the laceration over the middle of back.
Since there is no concrete opinion about that particular injury, therefore, it
25
2025:JHHC:15578-DB
will not be to inferred that the same was caused by hurling of the bomb by
the appellant, namely, Sk. Safeed @ Sukharu.
54. Thus, on the basis of the discussion made hereinabove, it is evident that
evidence is not sufficiently available on record in order to convict the
present appellants under Section 307/149 IPC and since concrete evidence
is not available therefore it is considered view of this Court that present
appellants deserve to be given “benefit of doubt”, so far the charges
aforesaid is concerned.
55. It requires to refer herein that the principle of ‘benefit of doubt’ belongs
exclusively to criminal jurisprudence. The pristine doctrine of ‘benefit of
doubt’ can be invoked when there is reasonable doubt regarding the guilt
of the accused, reference in this regard may be made to the judgment
rendered by the Hon’ble Apex Court in the case of “State of Haryana Vrs.
Bhagirath & Ors.”, reported in (1999) 5 SCC 96, wherein, it has been
held at paragraph-7 as under: –
“7. The High Court had failed to consider the implication of the
evidence of the two eyewitnesses on the complicity of Bhagirath
particularly when the High Court found their evidence reliable. The
benefit of doubt was given to Bhagirath “as a matter of abundant
caution”. Unfortunately, the High Court did not point out the area
where there is such a doubt. Any restraint by way of abundant caution
need not be entangled with the concept of the benefit of doubt. Abundant
caution is always desirable in all spheres of human activity. But the
principle of benefit of doubt belongs exclusively to criminal
jurisprudence. The pristine doctrine of benefit of doubt can be invoked
when there is reasonable doubt regarding the guilt of the accused. It is
the reasonable doubt which a conscientious judicial mind entertains on
a conspectus of the entire evidence that the accused might not have
committed the offence, which affords the benefit to the accused at the
end of the criminal trial. Benefit of doubt is not a legal dosage to be
administered at every segment of the evidence, but an advantage to be
afforded to the accused at the final end after consideration of the entire26
2025:JHHC:15578-DBevidence, if the Judge conscientiously and reasonably entertains doubt
regarding the guilt of the accused.”
56. Likewise, the Hon’ble Apex Court in the case of “Krishnegowda v. State
of Karnataka” (Supra) at paragraph- 32 and 33 has held as under:-
“32. — — The minor variations and contradictions in the evidence of
the eyewitnesses will not tilt the benefit of doubt in favour of the accused
but when the contradictions in the evidence of the prosecution witnesses
proves to be fatal to the prosecution case then those contradictions go
to the root of the matter and in such cases the accused gets the benefit
of doubt.
33. It is the duty of the Court to consider the trustworthiness of evidence
on record. As said by Bentham, “witnesses are the eyes and ears of
justice.— -”
57. Further, it needs to refer herein that the Hon’ble Apex Court, in the case
of “Allarakha K. Mansuri v. State of Gujarat“, (2002) 3 SCC 57 has laid
down the principle that the golden thread which runs through the web of
administration of justice in criminal case is that if two views are possible
on the evidence adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favourable to the accused
should be adopted, for ready reference, paragraph-6 thereof requires to be
referred herein which reads hereunder as :-
“6. ——The golden thread which runs through the web of
administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. –”
58. It needs to refer herein before laying down the aforesaid view, the Hon’ble
Apex Court in the case of “Sharad Birdhichand Sarda v. State of
Maharashtra“, (1984) 4 SCC 116 has already laid down the same view
at paragraph-163 which is required to be referred which read hereunder as
“163. We then pass on to another important point which seems to have
been completely missed by the High Court. It is well settled that where
27
2025:JHHC:15578-DB
on the evidence two possibilities are available or open, one which goes
in favour of the prosecution and the other which benefits an accused,
the accused is undoubtedly entitled to the benefit of doubt.—“
59. This Court, after having discussed the factual aspect and legal position and
considering the finding recorded by the learned trial Court, is of the view
that accusation under Section 307/149 of the IPC against the present
appellants is not made out, therefore, the present appellants cannot be
convicted under Section 307 of the IPC.
60. Further as discussed hereinabove in the preceding paragraph, it is clear
that no role is attributed to present appellants in the murder of deceased,
namely, Badruddin (father of the informant). Further, there is no evidence
put forth by the prosecution in regard to common object in the entire
alleged occurrence, therefore, the present appellants cannot be convicted
under Section 302/149 IPC also.
61. At this juncture it would be apt to refer herein that since the presence of
the injured prosecution witness particularly PW1 at the place of occurrence
is not doubtful and PW1 in his fardbeyan has categorically stated that
present appellant namely Sk. Zafruddin @ MD. Zafruddin was armed with
lathi and passaulted the injured witnesses by lathi. As per the injury reports
lacerated wound had been found by the doctor on body of injured persons.
Therefore, it is considered view of this Court that the appellant is guilty for
the offence under Section 321 IPC punishable under Section 323 IPC.
62. Further, as discussed herein above as has been alleged against the
appellant, namely, Sk. Safeed @ Sukharu that he hurled bomb. However,
as per the injury report definite opinion has not been given by the doctor
regarding injury no.4, i.e., one laceration 3″ x 2 ” with the tattooing mark
around the laceration over the middle of back which may perhaps caused
by the bomb. Since the aforesaid injury is simple in nature and there is no
28
2025:JHHC:15578-DBdefinite opinion about the genesis of the said injury, therefore, this Court
is of the view that the appellant-Sk. Safeed @ Sukharu is guilty for the
offence under Section 321 IPC punishable under Section 323 IPC.
63. So far the conviction of the present appellants under Section 148 of
the IPC is concerned, it would be relevant to mention herein that
Section 146 of the IPC provides that whenever force or violence is used by
unlawful assembly or by any member thereof in prosecution of the
common object of such assembly, every member of the unlawful assembly
is guilty of the offence of rioting. Therefore, the condition precedent for
attracting Section 148 of the IPC is that there has to be an unlawful
assembly. Section 141 IPC defines an “unlawful assembly” as an assembly
of five or more persons with a common object. Herein since no concrete
evidence has been put-forth by the prosecution regarding the common
object, therefore conviction against the present appellants under Section
148 IPC is also not sustainable.
64. This Court, therefore, is of the view based upon the discussions made
hereinabove, that the impugned judgment needs interference, accordingly,
the judgement of conviction dated 28.06.1996 and the order of sentence
dated 29.06.1996 passed by the learned 1 st Additional Sessions Judge,
Godda in Sessions Case No. 77 of 1986/10 of 1995 is hereby quashed and
set aside.
65. The appellants, above named are acquitted of the charges framed against
them for the offence under sections 302/149 and 307/149 of the Indian
Penal Code.
66. Consequent to the aforesaid, this Court, hereby, hold appellants guilty for
the offence under Section 323 I.P.C. and sentence them for the period
already undergone by them.
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2025:JHHC:15578-DB
67. The appellants are on bail by the order of this Court passed in the present
proceeding and, as such, they are discharged from the liabilities of bail
bonds.
68. With the aforesaid observation, the instant criminal appeal stands disposed
of.
69. Pending I.As, if any, stands disposed of.
70. Let Trial Court Records be transmitted to the Court concerned, forthwith.
(Sujit Narayan Prasad, J.)
I Agree.
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Sudhir
Jharkhand High Court,
Dated:13/06/2025
AFR30
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