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Jharkhand High Court
Md. Naseem Ansari vs The State Of Jharkhand on 23 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Gautam Kumar Choudhary
2025:JHHC:12094-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 1154 of 2012
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(Against the Judgment of conviction dated 18.10.2012 and order of sentence
dated 19.10.2012 passed by learned Additional Sessions Judge-VII,
Dhanbad, in Sessions Trial No. 429 of 2008)
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Md. Naseem Ansari, son of Late Yusuf Ansari @ Late Yusuf Raj Mistri,
Resident of Chhatabad 4 Number, PO & PS Katras, District-Dhanbad.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.....
For the Appellant : Mr. B.M. Tripathy, Sr. Advocate
Mr. Sourav Kumar, Advocate
Mr. Vikas Kumar, Advocate
For the Resp.-State : Mrs. Nehala Sharmin, Spl. P.P.
.....
th
C.A.V./Reserved on 20 March, 2025 Pronounced on 23/04/2025
Per Sujit Narayan Prasad, J.:
1. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure,
has been preferred against the Judgment of conviction dated 18.10.2012 and
order of sentence dated 19.10.2012 passed by learned Additional Sessions
Judge-VII, Dhanbad, in Sessions Trial No. 429 of 2008, whereby and
whereunder, the appellant has been convicted under Section 302/34 of IPC
and under Section 27 of Arms Act and sentenced to undergo rigorous
imprisonment for life for the offence under Section 302/34 and further has
been sentenced to undergo rigorous imprisonment for five years under
Section 27 of Arms Act. Both the sentences have been directed to run
concurrently.
Factual Matrix
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2. The prosecution story in brief as per the allegation made in the fardbeyan by
one Md. Miraj, the informant, read as under:
On 06.04.2008 at evening while informant was going on his
motorcycle from his house situate at village-Chhatabad to Katras for getting
his motorcycle repaired and happened to reach by the tea stall of Birju Sao
near Chhatabad bridge, he saw his brother Md. Firoz taking tea along with
Md. Sabir, Laxman Rawani, Mangal @ Mumtaz and Vicky at said tea stall.
On the same day at about 6:45 pm when informant was returning back from
Katras and reached at said tea stall, he saw that Md. Naseem Ansari
(appellant) arrived there along with 4-5 unknown persons and the appellant
aimed his revolver at temple of Md. Firoz and fired one shot and his other 4-
5 unknown companions also fired repeatedly with their revolvers and then
all miscreants fled away. Md. Firoz was taken to Choudhary Nursing Home,
Katras and from there to a Asarfi hospital at Dhanbad where he was declared
already dead. Enmity between the accused and the deceased is said to be the
motive of alleged occurrence.
3. After investigation, the police submitted the charge sheet against Md.
Muslim Ansari for offences u/s 302/34 IPC and u/s 27 of the Arms Act, with
a note that in spite of best efforts, the identity and address of rest 4-5
unknown miscreants could not have been traced out, thereafter the case was
committed to the court of Sessions.
4. The appellant was charged for offence punishable under Section 302/34 of
IPC and 27 of Arms Act to which the appellant pleaded not guilty and
claimed to be tried. The statement of the appellant was recorded under
Section 313 of Cr.P.C.
5. Accordingly, the trial proceeded and the appellant was found guilty by the
learned trial court for the offence under Section 302/34 of IPC and have
been sentenced to undergo rigorous imprisonment for life and further the
appellant was also found guilty under Section 27 of Arms Act and sentenced
to undergo rigorous imprisonment for five years. The aforesaid order of
conviction and sentence is under challenge herein.
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Submission of the learned counsel for the appellant:
6. Learned counsel for the appellant has taken the following grounds for
interfering with the finding recorded by the learned trial court in the
impugned judgment:
(i) The ground has been taken that the place of occurrence is a tea shop of
one Birju Sao but he has not been examined as witness who is the best
witness to say the truth but due to his non-examination, serious
prejudice has been caused to the appellant.
(ii) The statement of the persons concerned who were sitting along with
the deceased at the tea stall, whose statements have been recorded
under Section 164 Cr.P.C. but the statement so recorded under Section
164 Cr.P.C. if will be compared to their testimonies, contradiction is
there.
(iii) Further one Laxman Rawani though as referred in First Information
Report, as an eye-witnesses, but he has not been examined as
prosecution witness. Further the owner of the tea stall who is also
witness of the alleged occurrence has also not been examined,
therefore conviction of the appellant is not said to be beyond
reasonable doubt.
(iv) There is discrepancy between ocular and medical evidences as the
manner of occurrence and number of shots fired, about this aspect
there is inconsistency in the deposition of eye-witnesses.
(v) The informant claimed himself as an Eye-witness is chance witnesses,
hence not reliable and as such the order of conviction of the appellant
is not sustainable in the eyes of law.
7. The learned counsel for the appellant, based upon the aforesaid grounds, has
submitted that the learned trial court has not taken into consideration of the
aforesaid facts, as such, the impugned judgment requires interference, hence
not sustainable in the eyes of law.
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Submission of learned Special Public Prosecutor for state:
8. While defending the judgment of conviction and sentence, the learned
Special Public Prosecutor appearing for the State has raised the following
arguments in response to the grounds raised by the learned counsel for the
appellant that:
(I) Merely because Birju Sao, the owner of the tea shop, has not been
examined, the prosecution will not vitiate in view of the fact that the
other persons were sitting at the tea stall while taking tea along with
the deceased had seen the occurrence who have supported the
prosecution version.
(II) Even if there is contradiction in the statement as recorded of the
person concerned under Section 164 Cr.P.C. who were sitting in the
tea shop at the time of taking tea along with the deceased, will not
vitiate the prosecution version in view of the fact that no attention has
been drawn by taking contradiction from the respective witnesses by
the defence and hence, in absence of compliance of Section 145 of the
Evidence Act, the said ground cannot be allowed to sustain.
(III) In response to submission of the learned counsel for the appellant that
Laxman Rawani though as referred in First Information Report, as an
eye-witnesses, has not been examined as prosecution witness,
submission has been made that Quantity of witnesses is not required
to be seen if there are few eye-witnesses examined are very
trustworthy and reliable then there is no need to examine bundle of
eye-witnesses.
(IV) Looking to the evidences on record, no other weapon has been used
except firearms and as per the deposition of eye-witnesses, this
appellant has used firearms and caused firearm injury, which is getting
enough corroboration from the evidence available on record.
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9. The learned Special Public Prosecutor appearing for the State, based upon
the aforesaid premise, has submitted that the impugned judgment does not
suffer from any error, hence the instant appeal is fit to be dismissed.
Analysis
10. 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.
11. We have also gone through the testimonies of the witnesses as available in
the LCR as also the exhibits appended therewith.
12. Learned trial court, based upon the testimonies of witnesses, has passed the
judgment of conviction and has convicted the appellant under Section
302/34 of Indian Penal Code and under Section 27 of the Arms Act and
sentenced him to undergo imprisonment for life for the offence under
Section 302/34 of the IPC and further undergo rigorous imprisonment for
five years under Section 27 of Arms Act.
13. 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 learned trial Court. The learned trial court during the
trial has altogether examined 12 witnesses and testimony of the same is
required to referred herein.
14. Md. Imanul Ansari (PW-1) has deposed that on 06.04.2008, at about 5:00-
5:30 pm while he was seated at the shop along with Firoz and Sabir, a phone
call came on the mobile phone of Sabir, that, Naseem asked him (Sabir) to
come to the bridge, thereafter Sabir and Firoz went to the bridge and after
about 30-45 minutes Sabir returned and told that Naseem killed Firoz by
firing and this witness went on spot where Firoz was lying and he helped in
carrying him to the doctor but the doctor declared that Firoz was dead.
He proved his signature (Ext.-1) on the carbon copy of inquest report.
He is the cousin of deceased Firoz and happened to know Naseem since long
as the accused is his neighbour. The office where he was sitting at the time
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of phone call is about ¼ km away from the place of occurrence. He admitted
at para-9 of his evidence that he himself has not seen the occurrence. His
attention was drawn to his earlier statement before I.O and he asserted to
have so stated to I.O. that he had carried Firoz to doctor in the car of Sabir.
15. Sabir Ansari (PW-2) has deposed that while he along with Imanul (PW-1)
and Firoz (deceased) were seated at his office Verandah this witness
received the telephone call on his mobile from Naseem and asked this
witness if Firoz was also there; he replied in affirmative. Naseem asked PW-
2 to come at bridge along with Firoz to take tea and when PW-2 and Firoz
went at the place, Naseem was not there and Mangal (PW-3) and Laxman
were present there.
After some time, storm came and therefore, PW-2 and Vicky (PW-4)
sat on the car and about 2-4 minutes thereafter, he heard firing shot and saw
that Naseem fired a shot at Firoz. He also deposed that he has been
acquainted with Naseem since last 20 years. The statement of this witness
(Sabir) was duly recorded by the Magistrate (PW-9) who proved to have
recorded his statement U/s 164 of Cr.P.C vide (Ext.-13).
16. Md. Mumtaj @ Mangal (PW-3) deposed that at the relevant time while he
along with Firoz, Sabir, Vicky and Laxman Rawani were taking tea near
Chhatabad bridge (bus stand), Sabir and Vicky sat on the nearby parked car,
that only one minute thereafter Naseem arrived and fired one shot at Firoz
and this witness also heard fire shot of 7-8 rounds. Thereafter Naseem
announced that Firoz was dead, and this witness also fled away and when
village people came, he came along with them. Thereafter, all the accused
fled away. After some time, police arrived at the place of occurrence and
collected empty cartridges, blood and slippers, prepared the recovered item
list on which he also put his signature (Ext.-2). He also deposed that he had
made his statement before Magistrate under section 164 Cr.P.C. (Ext.-13/3).
He said that Naseem arrived in his presence, but he did not become nervous
on seeing Naseem armed with gun. He thought that Firoz must be mocking
again. He also stated that he saw blood in the place of occurrence and that
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he did not pay attention to the cloth of Firoz. He also stated that after 4 days
of the incident took place, his statement was recoded before the Magistrate.
17. Vishal Kumar Raijada @ Vicky. (PW-4) deposed that on 06.04.2008 about
6:30 PM while he was passing though Chhatabad bridge on his Santro Car,
he saw Firoz, Sabir, Mangal and Laxman seated at tea stall of Birju and on
their call, this witness also got down from his car and joined them. In the
meantime, a storm rose and he and Sabir sat in his car, about two minutes
later, he saw that Naseem and 3-4 other persons fired shots at Firoz and they
fled away, shouting that he died.
He also deposed that he had given his statement U/s 164 Cr.P.C
before Magistrate and he proved his signature thereon, he claimed that he
has been acquainted with the accused and deceased since before as they
happened to be his neighbours. He deposed that his house is around 0.5 km
away from the place of occurrence. He also stated that his statement was
recorded by the police on the day of occurrence. He then stated that he had
not seen dead body of the accused at the place on occurrence.
18. Informant Md. Meeraj (PW-5) is the brother of deceased Md. Firoz. He has
narrated the prosecution story as described in his fardbeyan (Ext.-7). He
stated that on 06.04.2000 about 6:30 PM, while he was returning home from
Katras Market and happened to reach near the tea stall he saw accused
Naseem Ansari firing from his pistol aiming at the temple of Firoz; that 4-5
other companions of Naseem also fired at Firoz and thereafter, all the
accused persons fled away. Informant took Firoz, who was profusely
bleeding, to Choudhary Nursing Home and from there to Asarfi Hospital at
Dhanbad where Firoz was declared as brought dead; that he brought the
corpse at thana chauk, where police recorded his statement. He proved his
signature (Ext.-3) and signature the witness Afroz (PW-11) vide Ext.-3/1, on
the fardbeyan (Ext.-7).
19. He identified accused Naseem on dock. It also comes from his evidence that,
originally Naseem and Firoz were friends. He deposed that he did not
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remember if he had not stated before I.O that when he had returned at, place
of occurrence at relevant time he had seen Sabir and Vicky seated in the car.
20. Dr. Shailendra Kumar (PW-6) claimed to have conducted the post-mortem
of the dead body of Md. Firoz Ansari on 07.04.2008 at PMCH, Dhanbad and
found following ante-mortem injury on his person;
(i) fire wound of entrance 3/4 cm diameter found on the left eye up
to brain deep. Left eye was completely lacerated and brain
matter was coming out of the wound. Tattooing was found all
over the left side of face and forehead.
(ii) 3/4″ diameter with abrasion colour and brain deep situated just
about the rt. Ear.
(iii) 3/4 cm diameter with abrasion colour brain deep found on the
top of head.
(iv) 1/2 cm diameter with abrasion colour found on the upper portion
outer aspect of rt. arm bone of the rt. arm was found fractured.
(v) 3/4 cm diameter with abrasion colour on the upper portion front
of left arm.
(vi) 3/4 cm diameter with abrasion on colour on the inner aspect
forearm.
(vii) 3/4 cm diameter with abrasion colour cavity deep on the rt. flank
of chest about 10 cm below rt. Nipple.
(viii) ½ cm diameter cavity deep with abrasion colour on the left
shoulder blade.
(ix) ½ cm diameter with abrasion colour cavity deep in between the
two shoulder blades. Just by the left side of vertebral column.
(x) ½ cm diameter with abrasion colour on the rt. Side back of chin
in upper portion.
(2) Fire arms wound exit:-
(i) 1 cm diameter situated on the mauribrium.
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(ii) 1 cm diameter situated on the left side front of chest about 2 ”
just below left nipple.
(iii) 1 cm diameter situated on the left flank of chest 10 cm below
the left nipple.
(iv) 1 cm diameter on the outer aspect of rt. Fera.
(v) 1 cm diameter on the back of upper portion of left thigh.
(vi) 1 cm diameter on the upper portion inner aspect of rt. arm.
(vii) 1 cm diameter on the upper portion rt. Flank of neck.
(viii)1 cm diameter on the left temple.
On dissection:
Pushing the track of bullets it was found that the bullet which
has entered into brain through injury No. 1 (i) was found lodged in the
left side of brain matter from where it was removed out. Bullet was 2
cm long and about 8 cm diameter.
Bullet which entered into brain though injury No. 1 (ii) it broke
temporal bones of skull on both sides and going through and through
the brain it came out through injury No. 2 (viii). bullet which entered
into the brain though injury No. 1 (iii) which broke parietal bones of
skull of both side and went through and through the brain and came
out of injury No. 1 (vii). One bullet going through and through the rt.
arm and came out of injury No. 2 (iv). second bullet going through
and through the arm came out of injury No. 1 (iv). A bullet was found
lodged in bone of the arm which was 1 cm long and .8 cm diameter
with dissected nose. The bullets which entered into the left thigh
through injury No. 1 (v) came out of injury No. 2(v) of the same thigh,
one bullet went through and through the rt. fore arm and came out of
injury No. 2 (vi). The bullet which entered into abdomen though
injury No. 1 (vii). it purported loops of intestine measentry and
omenta and came out of injury No. 2 (iii). the bullet entered into the
chest cavity through injury No. 1 (viii) it broke the left scapula and
crossed the left lung through and through broke the 4th rib and came9 Cr. Appeal (DB) No. 1154 of 2012
2025:JHHC:12094-DBout through injury No. 2(ii). The bullet entered into the chest cavity
through injury No.1 (ix) it lacerated the arch of orata and came out of
injury No. 2 (i) after breaking the mainubrium the-bullet entered into
chest cavity through injury No. 1 (x) was found in lodge in the rt.
Lung. It was 1.5 cm long and 8 cm diameter. The bullets were
removed from the body sealed labelled and handed over to the
constable for exhibit. Blood and blood clouts were found all over the
chest and abdominal cavity. Hurt and bladder were empty. Stomach
contained about 100 cc of brownish flush alcoholic smell and other
internal organs were pale.
Cause of death:-
The death was due to aforementioned injuries of internal vital
organs caused by bullets fired from distance of more than 2ft. but
injury No. 1 (i) caused by a bullet fired from the distance of more than
1ft. but less than 2ft.
21. Constable Raj Kishore Singh (PW-7) is the formal witness and he had
produced the seized articles in court, i.e, five empty cartridges of 9 mm
(Ext.-1 to I/IV), three empty cartridges of 7.65 mm (Ext-II to 2/II), one live
cartridge of 7.65 mm (Ext. III), two pellets of .9 mm cartridge (Ext-IV to
IV/1), one pellet of 7.65 mm (broken) (Ext-V), one pair of black Hawai
Chappal of Raxin (old) (Ext.-VI).
22. I.O (PW-8) has deposed at para 21 of his evidence that on 06.04.2008 at
19:00 hours on hearing the occurrence of firing at Chhatabad Chowk, he
went at the place of occurrence and, first of all he prepared the seizure list
and recorded the fardbeyan at Chhatabad Chowk vide para-2 of case diary.
At para-7 of case diary he has mentioned about inquest report and about
inspection of the place of occurrence and then at 23:00 hours he returned to
P.S and drawn up the FIR and he had done above part of investigation
before drawing up the FIR.
23. Further, (PW-8) had recovered and seized five empty cartridges of 9 mm,
three empty cartridges of 7.65 mm; one live cartridge of 7.65 mm; one
pellet of 9 mm, two pellets of 7.65 mm, one pair of raxin chappal of black
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colour from place of occurrence, in presence of Birju Sao (not examined),
Mangal Mumtaj (PW-3) and Pawan Kumar Sao (not examined) and
prepared the seizure list (Ext.-10). He described the place of occurrence,
the road in front of tea shop of Birju Sao and motor parts shop of Lalu, near
Chhatabaad bridge He proved the site map (Ext-12) of place of occurrence,
which was prepared by him. He claimed that huge blood was found at place
of occurrence. He stated that he had not made his signature on any register
in proof of seized articles having been deposited at “Malkhana” He also
stated that the seized Chappals, which bore blood-marks, were not sent to
Forensic Laboratory for examination of blood found on the chappals.
24. Raj Kumar Mishra, Magistrate (PW-9) stated that he had recorded the
statements of witnesses in this case U/s 164 Cr.P.C, namely, Sabir Ansari,
Inamul, Laxman Rawani, Mumtaj @Mangal and Vishal Kumar Raijada @
Vicky, vide (Ext.-13 to 13/4). He claimed that these witnesses had given
their statements voluntarily, and that he was satisfied on his inquiry that
they were deposing voluntarily. Magistrate had recorded their statements
on oath.
25. P.W-10 Md. Siraj Ansari is brother of the deceased. He is not the
eyewitness of the occurrence as he had deposed that on 06.08.2004 at 6-
6:30 pm he was at his house and at that time some boys came there and had
stated that his brother Firoz had been killed by Naseem, thereafter he ran to
the place of occurrence wherein he came to know that some people had
taken his brother to Chudhary Nursing home. He further deposed that he
reached at the police station and put his signature on the inquest report.
26. He had stated that cause of occurrence is that Naseem had quarrel with
Harun Quraisi in connection whereof Firoz (deceased) had scolded Naseem
(appellant herein). This witness has not been cross-examined on point of
aforesaid motive.
27. Md. Afroj Khan @Babloo (PW-11) is not an eyewitness of the occurrence
and at the time of occurrence he was at Sijua. He testified that a call had
come from Chattabad that Naseem had murdered Firoz by firing bullet. He
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has deposed about the previous quarrel between Harun Quraisi in
connection of which Firoz had intervened.
28. Constable Harendra Singh (PW-12) has formally proved the S.D. entry No.
107 dated 06.04.2008 (Ext.-14/1) and S.D. entry no. dated 07.04.2008 (Ext
14/2), both in relation to instant case (Katras PS Case No. 76/08, dated
05.04.2008), which he had produced in the court as per directions in letter
(Ext-15).
29. It is evident from the aforesaid testimonies of the witnesses that P.W.1
P.W.10 and P.W.11 are the hearsay witnesses and they had substantially
supported the case of prosecution. On the point of motive behind the
alleged occurrence, P.W.10 and P.W.11 had categorically stated about the
previous animosity between the deceased and appellant and statements of
these witnesses have been fully corroborated by the testimony of PW.2
Sabir who had stated that animosity was going in between the deceased and
appellant. Thus, motive behind the alleged occurrence has fully established
from testimonies of the aforesaid witnesses. However, it is settled position
of law that when there is direct evidence of acceptable nature regarding
commission of alleged offence on record then motive is not very much
material in aforesaid cases.
30. In the case of State of A.P. v. Bogam Chandraiah, (1986) 3 SCC 637 the
Hon’ble Apex Court has categorically observed that it is the well settled
rule that when there is direct evidence of an acceptable nature regarding the
commission of an offence the question of motive cannot loom large in the
mind of the court. For ready reference the relevant paragraph is being
quoted as under:
“11. —– Another failing in the judgment is that the High Court has
held that the prosecution has failed to prove adequate motive for the
commission of the offence without bearing in mind the well settled
rule that when there is direct evidence of an acceptable nature
regarding the commission of an offence the question of motive
cannot loom large in the mind of the court. Lastly, we find that the
High Court has, evolved a theory of its own, without there being any
material to support it, and premised that the occurrence must have
taken place during darkness, and subsequently the respondents must
have been implicated on account of suspicion.”
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31. Further the Hon’ble Supreme Court in the case of Kumar Vs. State,
represented by Inspector of Police (2018) 7 SCC 536, wherein at
paragraph 33 it has been held as under:
“33. Coming to the other aspect of the case, motive of the accused to
commit the crime is ascribed to the previous quarrel occasioned
between the accused and the deceased during a drama at a village
festival. Generally, in the case prosecution desires to place motive of
the accused as a circumstance, like any other incriminating
circumstance, it should also be fully established. We are alive to the
fact that if the genesis of the motive of the occurrence is not proved,
the ocular testimony of the witnesses as to the occurrence could not
be discarded only on the ground of absence of motive, if otherwise
the evidence is worthy of reliance.—-”
32. In the instant case, from the testimony of P.W.10 and P.W.11 motive
behind the alleged occurrence has fully been established which has been
substantiated by the testimony of P.W.2 and further evidence of these
witnesses on the point of motive is unshaken throughout their lengthy cross
examination, and further in the instant case there is direct evidence in form
of testimony of P.W.2, P.W.3 P.W. 4 and P.W. 5 as available on record.
33. It is evident from record that P.W.2, P.W.3, P.W.4 and P.W.5 had claimed
themselves as eyewitness of the alleged occurrence. From perusal of the
testimony of P.W.2 which has been referred hereinabove it is evident that
he has fully supported the prosecution case. In his testimony he had stated
that when he along with Imanul (PW-1) and Firoz (deceased) were seated
at his office Verandah then the telephone call on his mobile from Naseem
had come and Naseem asked PW-2 to come at bridge along with Firoz to
take tea and when PW-2 and Firoz went at the place, Naseem was not there
and Mangal (PW-3) and Laxman were present there. He further testified
that after some time, storm came and, therefore, PW-2 and Vicky (PW-4)
sat on the car and about 2-4 minutes thereafter, he heard firing shot and saw
that Naseem fired a shot at Firoz. In the cross-examination defence has not
found any crack regarding his presence at the place of occurrence. It needs
to refer herein that this witness had stated on the same line as he stated
before the Magistrate (PW-9) who proved to have recorded his statement
U/s 164 of Cr.P.C vide (Ext.-13).
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34. Thus, it is evident that testimony of P.W. 1 and P.W.2 is supportive to each
other and further, their testimonies have been corroborated by their
statements which were recorded before P.W.9 under Section 164 Cr.P.C. It
is further evident that P.W.2 in his testimony had categorically stated that
only Naseem had fired a shot at Firoz, but at the same time he corroborated
his statement and stated that 4-5 other accused had also fired at Firoz.
35. Md. Mumtaj @ Mangal (PW-3) had testified that at the relevant time while
he along with Firoz, Sabir, Vicky and Laxman Rawani were taking tea near
Chhatabad bridge (bus stand), Sabir and Vicky sat on the nearby parked car
and only one minute thereafter Naseem arrived and fired one shot at Firoz
and this witness also heard fire shot of 7-8 rounds. He had further stated
that after some time, police arrived at the place of occurrence and collected
empty cartridges, blood and slippers, prepared the recovered item list on
which he also put his signature (Ext.-2).
36. Thus, it is evident from his testimony that P.W.2 Sabir was also present at
the place of occurrence as such presence of P.W.2 and this witnesses at the
place of occurrence are fully established. Further this witness had also
made his statement before Magistrate under section 164 Cr.P.C. (Ext.-13/3)
wherein he had stated on the same line as stated in the examination-in
chief.
37. Further the prosecution witness P.W. 7 and P.W.12 is formal in nature as
they had not stated anything on point of occurrence
38. From the perusal of the impugned order of conviction and sentence it is
evident that the learned trial court had nullified the claim of the P.W.7
(Informant) as an eyewitness but at the same time P.W.3, P.W.4, had been
considered as eyewitness of the alleged occurrence and the trial court based
upon the testimony of said eyewitness had convicted the present appellant.
39. Vishal Kumar Raijada @ Vicky. (PW-4) had testified that on 06.04.2008
about 6:30 PM while he was passing though Chhatabad bridge on his
Santro Car, he saw Firoz, Sabir, Mangal and Laxman seated at tea stall of
Birju and on their call, this witness also got down from his car and joined
them. In the meantime, a storm rose and he and Sabir sat in his car, about
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two minutes later, he saw that Naseem and 3-4 other persons fired shots at
Firoz and they fled away, shouting that he died.
40. Thus, from the testimonies of P.W.2, P.W.3 and P.W.4 it is evident they
were present at the place of occurrence at relevant time. All these witnesses
had fully corroborated to each other on the point of their presence at the
place of occurrence and further they have corroborated to each other in
their testimony on the point of occurrence also wherein they had stated that
they saw that Naseem and 3-4 other persons had fired shots at Firoz.
Further the statements of all these witnesses have been recorded under
Section 164 Cr.P.C before P.W.9 wherein they unanimously supported the
alleged occurrence.
41. The learned counsel for the appellant has raised about the contradiction
among the testimony of the aforesaid eyewitnesses.
42. In the aforesaid context it needs to refer herein that law is well settled that
merely because there are some minor contradictions and discrepancies in
the testimony of the witness, the same cannot be enough to vitiate the
prosecution story, as has been held by the Hon’ble Apex Court in the case
of Mukesh Kumar v. State (NCT of Delhi), reported in (2015) 17 SCC
694, wherein, at paragraph-8, it has been held as under:
“8. —- it is our considered view that minor discrepancies,
embellishments and contradictions in the evidence of the eyewitnesses
do not destroy the essential fabric of the prosecution case, the core of
which remains unaffected. Even if we have to assume that there are
certain unnatural features in the evidence of the eyewitnesses the
same can be reasonably explained on an accepted proposition of law
that different persons would react to the same situation in different
manner and there can be no uniform or accepted code of conduct to
judge the correctness of the conduct of the prosecution witnesses i.e.
PWs 1 and 2. The relation between PWs 5 and 6 and PWs 1 and 2 and
the deceased, in our considered view, by itself, would not discredit the
testimony of the said witnesses. There is nothing in the evidence of
PWs 1 and 2 which makes their version unworthy of acceptance and
their testimony remains unshaken in the elaborate cross- examination
undertaken.”
43. Thus, from the aforesaid proposition of law it is evident that minor
discrepancies, embellishments and contradictions in the evidence of the
eyewitness do not destroy the essential fabric of the prosecution case, the
core of which remains unaffected.
15 Cr. Appeal (DB) No. 1154 of 2012
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44. P.W.5 is the informant of the instant case and brother of the deceased. He
had testified that on 06.04.2000 about 6:30 PM, while he was returning
home from Katras Market and happened to reach near the tea stall he saw
accused Naseem Ansari firing from his pistol aiming at the temple of Firoz
(deceased) and 4-5 other companions of Naseem also fired at Firoz and
thereafter, all the accused persons fled away. He further testified that
informant took Firoz, who was profusely bleeding, to Choudhary Nursing
Home and from there to Asarfi Hospital at Dhanbad where Firoz was
declared as brought dead.
45. Thus, it is evident from his testimony that place of occurrence was the tea
stall of Birju (not examined) near Chattabad overbridge. Presence of this
witness has fortified by the testimony of P.W.2 and P.W.3 who had
testified that at the place of occurrence they saw the Md. Meeraj (PW-5).
This witness has categorically stated that Naseem along with other
miscreants had fired shot upon his brother. Statement of this witness had
also been recorded under Section 164 Cr.P.C. wherein he had fully
supported the prosecution case. Further there is no any discrepancy on
record regarding his fardbeyan vis-à-vis examination-in-chief, meaning
thereby the case of prosecution has fully been substantiated by this witness.
46. However, the learned counsel for the appellant had contended that this
witness is a chance witnesses, hence not reliable and as such the order of
conviction of the appellant is not sustainable in the eyes of law.
47. On the contention of learned counsel for the appellant that the informant
who is eye-witnesses is a chance witness, it is submitted by the Special PP
that murder is not committed with previous notice to witnesses soliciting
their presence and if murder is committed in the street, only passers-by will
be the witness and their evidence cannot be brushed aside with suspicion on
the ground that they are mere chance witnesses. Learned Counsel has
submitted that here since all the eye witnesses are consistent in their
statement in cross- examination, the prosecution case cannot be disbelieved
on this ground.
16 Cr. Appeal (DB) No. 1154 of 2012
2025:JHHC:12094-DB
48. In the aforesaid context Law is settled in this regard that the chance witness
is one who happens to be present at the place of occurrence by coincidence
or chance. A person walking on street witnessing the commission of an
offence can be a chance witness. Merely because a witness happens to see
an occurrence by chance, his testimony cannot be eschewed though little
more scrutiny may require at times.
49. The Hon’ble Apex Court while dealing with the reliability of chance
witness in the case of State of A.P. v. K. Srinivasulu Reddy, (2003) 12
SCC 660 at paragraph 13 held as under:
“13. Coming to the plea of the accused that PWs 4 and 9 were
“chance witnesses” who have not explained how they happened to be
at the alleged place of occurrence, it has to be noted that the said
witnesses were independent witnesses. There was not even a
suggestion to the witnesses that they had any animosity towards any of
the accused. In a murder trial by describing the independent witnesses
as “chance witnesses” it cannot be implied thereby that their evidence
is suspicious and their presence at the scene doubtful. Murders are
not committed with previous notice to witnesses; soliciting their
presence. If murder is committed in a dwelling house, the inmates of
the house are natural witnesses. If murder is committed in a street,
only passers- by will be witnesses. Their evidence cannot be brushed
aside or viewed with suspicion on the ground that they are mere
“chance witnesses. The expression “chance witness” is borrowed from
countries where every man’s home is considered his castle and
everyone must have an explanation for his presence elsewhere or in
another man’s castle. It is quite unsuitable an expression in a country
where people are less formal and more casual, at any rate in the
matter explaining their presence.”
50. In Ismail v. Momin (AIR 1941 Privi Council 11) it was held that though
the chance witness is not necessarily a false witness, is proverbially rash to
act upon such evidence. In the case of a chance witness, if that witness
gives sufficient reasons for his presence, that evidence can be accepted.
51. Further crime like murder is not committed with previous notice to
witnesses soliciting their presence and if murder is committed in the street,
only passers-by will be the witness and their evidence cannot be brushed
aside with suspicion on the ground that they are mere chance witnesses.
52. Reference in this regard may be taken from the judgment rendered by the
Hon’ble Apex Court in Ramvir Vs. State of U.P. 2009) 15 SCC 254] and
Sarvesh Narain Shukla Vs. Daroga Singh [(2007) 13 SCC 360.
17 Cr. Appeal (DB) No. 1154 of 2012
2025:JHHC:12094-DB
53. Thus, it is evident from the aforesaid proposition of law that even the
evidence of chance witness cannot be out-rightly rejected rather the
evidence of such witness requires a very cautious and close scrutiny.
54. On the touchstone of the aforesaid proposition of law, this Court proceeded
on the premise of aforesaid settled proposition of law to examine the
testimony of such witness and found therefrom that the informant has
disclosed the entire fact very specifically and he remain consistent in his
cross-examination.
55. In the instant case the informant who had been examined as P.W.5 in the
trial cannot be said to be chance witness as he was the resident of the
nearby locality and at about 6.30 evening this eyewitness was moving
around for repair of his Bike. The incident had happened near overbridge
and usually such type of place is common place for the daily commuters
and passer-by. As such the time of occurrence the presence of this
eyewitness at the place of occurrence is quite natural, as would be evident
from the testimonies of the other witnesses who have supported the
presence of this eyewitness at the place of occurrence.
56. Therefore, from the aforesaid depositions and testimonies of these
witnesses it is found that the contention raised on behalf of the appellant
that the informant is chance witness does not hold good. The witness being
the residents of the locality, his presence at the place of occurrence could
not be considered unnatural. Accordingly, his testimony cannot be
discarded.
57. The learned counsel had further contended that one Laxman Rawani though
as referred in First Information Report, as an eye-witnesses, but he has not
been examined as prosecution witness.
58. Per contra the learned Special PP has submitted that merely because Birju
Sao, the owner of the tea shop, and Laxman Rawani has not been
examined, the prosecution case will not vitiate in view of the fact that the
other persons were sitting at the tea stall while taking tea along with the
deceased had seen the occurrence who have fully supported the prosecution
version. Further the learned counsel for the State has emphatically argued
18 Cr. Appeal (DB) No. 1154 of 2012
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that the prosecution is not bound to produce each and every witness
because it may create ambiguity in the prosecution evidence.
59. The contention of the learned counsel for the appellant that material
witness has not been examined as such conviction of the appellant cannot
said to be proved beyond reasonable doubt, but this contention is not worth
to consider because it is settled proposition of law that prosecution is not
bound to produce each and every witness, this may create ambiguity in the
prosecution witness. It is also settled connotation of law that quality of
witnesses matter not quantity, reference in this regard may be taken from
the judgment as rendered by the Hon’ble Apex Court in the Binay Kumar
Singh v. State of Bihar reported in (1997) 1 SCC 283 wherein at paragraph
31 it has been held as under:
“31. ——. There is no rule of evidence that no conviction can be
based unless a certain minimum number of witnesses have identified a
particular accused as a member of the unlawful assembly. It is
axiomatic that evidence is not to be counted but only weighed and it is
not the quantity of evidence but the quality that matters. Even the
testimony of one single witness, if wholly reliable, is sufficient to
establish the identification of an accused as a member of an unlawful
assembly.”
60. In the backdrop of the aforesaid settled legal position this Court is now
looking to the evidence on record, it is abundantly clear that the edifice of
prosecution case is founded on the testimonies of the eye-witnesses i.e
P.W.2, P.W.3, P.W.4 and P.W.5.
61. From aforesaid discussion and analysis, it is evident that the death of Firoz
was homicidal in nature and as per evidence of doctor P.W.6 the death was
caused by shooting fire-arms. It is pertinent to mention here that P.W.2,
P.W.3, P.W.4 and P.W.5 are reliable witnesses and they have seen that
appellant and other unknown assailant had made indiscriminate firing by
fire- arms killing Firoz(deceased) at relevant time and place.
62. The aforesaid part of testimony of eyewitnesses i.e. P.W.2, P.W.3, P.W.4
and P.W.5 that the appellant and other unknown miscreants had made
firing by fire-arms and murdered Firoz (deceased) has fully been
substantiated by the medical evidence given by P.W.6, Doctor Shailendra
Kumar, who has carried post-mortem upon the body of the deceased
19 Cr. Appeal (DB) No. 1154 of 2012
2025:JHHC:12094-DB
wherein he has found more than one dozen injuries by firearms on the body
of deceased.
63. Moreover, the aforesaid depositions of the prosecution witnesses is also
getting further corroboration by the testimony of P.W.8, who is
Investigating Officer wherein he had stated that he had seized five empty
cartridges of 9 mm, three empty cartridges of 7.65 mm; one live cartridge
of 7.65 mm; one pellet of 9 mm, two pellets of 7.65 mm from place of
occurrence.
64. Thus, this Court on consideration of the testimony of the aforesaid
eyewitnesses in entirety has found no error to disbelieve it due to the settled
position of law that the testimony of all the witnesses is to be taken together
and not in piecemeal. Reference in this regard be made to the judgment
rendered in the case of Shyamal Ghosh v. State of West Bengal, reported
in (2012) 7 SCC 646 wherein at paragraph-69 it has been held as under:–
“69. Another settled rule of appreciation of evidence as already
indicated is that the court should not draw any conclusion by picking
up an isolated portion from the testimony of a witness without
adverting to the statement as a whole. Sometimes it may be feasible
that admission of a fact or circumstance by the witness is only to
clarify his statement or what has been placed on record. Where it is a
genuine attempt on the part of a witness to bring correct facts by
clarification on record, such statement must be seen in a different
light to a situation where the contradiction is of such a nature that it
impairs his evidence in its entirety.”
65. The Hon’ble Apex Court in the case of Bhagwan Jagannath Markad &
Ors. Vrs. State of Maharashtra, reported in (2016) 10 SCC 537 had held at
paragraph-19 & 20 as under:-
“19. While appreciating the evidence of a witness, the court has to
assess whether read as a whole, it is truthful. In doing so, the court
has to keep in mind the deficiencies, drawbacks and infirmities to find
out whether such discrepancies shake the truthfulness. Some
discrepancies not touching the core of the case are not enough to
reject the evidence as a whole. No true witness can escape from giving
some discrepant details. Only when discrepancies are so incompatible
as to affect the credibility of the version of a witness, the court may
reject the evidence. Section 155 of the Evidence Act enables the doubt
to impeach the credibility of the witness by proof of former
inconsistent statement. Section 145 of the Evidence Act lays down the
procedure for contradicting a witness by drawing his attention to the
part of the previous statement which is to be used for contradiction.
The former statement should have the effect of discrediting the present
statement but merely because the latter statement is at variance to the
former to some extent, it is not enough to be treated as a
20 Cr. Appeal (DB) No. 1154 of 2012
2025:JHHC:12094-DBcontradiction. It is not every discrepancy which affects the
creditworthiness and the trustworthiness of a witness. There may at
times be exaggeration or embellishment not affecting the credibility.
The court has to sift the chaff from the grain and find out the truth. A
statement may be partly rejected or partly accepted [Leela Ram v.
State of Haryana, (1999) 9 SCC 525, pp. 532-35, paras 9-13 : 2000
SCC (Cri) 222] . Want of independent witnesses or unusual behaviour
of witnesses of a crime is not enough to reject evidence. A witness
being a close relative is not enough to reject his testimony if it is
otherwise credible. A relation may not conceal the actual culprit. The
evidence may be closely scrutinised to assess whether an innocent
person is falsely implicated. Mechanical rejection of evidence even of
a “partisan” or “interested” witness may lead to failure of justice. It is
well known that principle “falsus in uno, falsus in omnibus” has no
general acceptability [Gangadhar Behera v. State of Orissa, (2002) 8
SCC 381, pp. 392-93, para 15 : 2003 SCC (Cri) 32] . On the same
evidence, some accused persons may be acquitted while others may be
convicted, depending upon the nature of the offence. The court can
differentiate the accused who is acquitted from those who are
convicted. A witness may be untruthful in some aspects but the other
part of the evidence may be worthy of acceptance. Discrepancies may
arise due to error of observations, loss of memory due to lapse of
time, mental disposition such as shock at the time of occurrence and
as such the normal discrepancy does not affect the credibility of a
witness.
20. Exaggerated to the rule of benefit of doubt can result in
miscarriage of justice. Letting the guilty escape is not doing justice. A
Judge presides over the trial not only to ensure that no innocent is
punished but also to see that guilty does not escape. [Gangadhar
Behera case, (2002) 8 SCC 381, p. 394, para 17]”
66. From the aforesaid it is evident that a witness being a close relative is not
enough to reject his testimony if it is otherwise credible. A relation may not
conceal the actual culprit. The evidence may be closely scrutinised to
assess whether an innocent person is falsely implicated. Mechanical
rejection of evidence even of a “partisan” or “interested” witness may lead
to failure of justice.
67. It has been observed by the Hon’ble Apex Court in the aforesaid referred
cases that exaggerated to the rule of benefit of doubt can result in
miscarriage of justice. Letting the guilty escape is not doing justice. A
Judge presides over the trial not only to ensure that no innocent is punished
but also to see that guilty does not escape. Reference in this regard may be
taken from the judgment rendered by the Hon’ble Apex Court in the case of
Gangadhar Behera case, (2002) 8 SCC 381.
68. On the basis of the discussion made hereinabove and after meticulous
examination of the evidences particularly the eyewitnesses available on
21 Cr. Appeal (DB) No. 1154 of 2012
2025:JHHC:12094-DB
record, it is amply clear that the prosecution has been able to establish that
charges beyond all reasonable doubt against the present appellant.
69. This Court, on the basis of discussion made hereinabove, is of the view that
the charge as has been said to be proved beyond all reasonable doubt as per
the finding of learned trial Court, according to our considered view, the
impugned order of conviction dated18.10.2012 and order of sentence dated
19.10.2012 passed by learned Additional Sessions Judge-VII, Dhanbad, in
Sessions Trial No. 429 of 2008 cannot be said to suffer from an error,
hence requires no interference.
70. Accordingly, the instant criminal appeal stands dismissed.
71. Pending interlocutory application(s), if any, also stands disposed of.
72. Let this order/judgment be communicated forthwith to the court concerned
along with the Lower Court Records.
(Sujit Narayan Prasad, J.)
I agree,
(Gautam Kumar Choudhary, J.) (Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated: 23/04/2025
Saurabh /A.F.R.
22 Cr. Appeal (DB) No. 1154 of 2012
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