Jharkhand High Court
Najmul Hoda @ Nanhu (Since Dead) vs State Of Bihar (Now Jharkhand) on 10 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:20393-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 64 of 1998 (R)
1. Najmul Hoda @ Nanhu (since dead)
2. Fakhrul Hoda @ Lalu
3. Minhajul Hoda
4. Khurshid Alam
5. Yusuf Hoda
All sons of late Qamrul Hoda
6. Halima Khatoon wife of Najmul Hoda
7. Ghulam Bari son of Rafique Mian
8. Rafique Mian son of late Amir Mian (since dead)
All residents of village Jaipur, P.S. Pratapur, Distt. Chatra
... ... Appellants
Versus
State of Bihar (now Jharkhand) ... ...Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For theAppellants : Mr. Navin Kumar Jaiswal, Advocate
For the Respondent : Mrs. Lily Sahay, Spl. P.P.
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10/10 July, 2025
th
Per Sujit Narayan Prasad, J.:
1. The instant appeal under Sections 374(2) and Section 389 of the
Criminal Procedure Code, 1973 is directed against the judgment of
conviction dated 26.02.1998 and order of sentence dated
04.03.1998 passed by the learned Ist Additional Sessions Judge at
Chatra in Sessions Trial No. 19/1996 whereby and whereunder, the
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appellants herein have been convicted for the offence under
Sections 148, 149, 323 and 302 of the Indian Penal Code and have
been sentenced to undergo Rigorous Imprisonment for life under
Section 302/149 of the Indian Penal Code.
2. The learned Spl. P.P. appearing for the respondent-State has
submitted that instruction has been received in terms of order
dated 07.04.2025 and the affidavit has already been filed in this
regard.
3. We have gone through the said affidavit dated 04.07.2025
wherefrom it is evident that initially the instant appeal was
preferred by all the eight accused/appellants but during pendency
of the instant appeal, the appellants namely Najmul Hoda and
Rafique Mian have died, which is authenticated by the concern
Mukhiya.
4. It is evident from record that no leave has been sought by any of the
legal heirs/close relatives of the deceased appellants in terms of
section 394 of the Cr. PC. as such, Cr. Appeal (DB) No. 64/1998
abates as against aforesaid appellants namely Najmul Hoda and
Rafique Mian.
Factual Matrix
5. The brief facts of the case as per the memo appeal is being referred
herein which reads as under:
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Briefly stated, the case of the prosecution as made out in the FIR
(Ext.5) is that the informant Md. Salauddin and his father namely
Abdul Rahman had taken a land from one Wakil Mian at Batai
adjacent to his house and he has been cultivating the same since
1994. On 01.11.1994, the informant’s father, after ploughing the
aforesaid parti land was levelling the same getting it ready for
growing crops.
At about 5 P.M., the accused/ appellant Najmul Hoda having
armed with tangi reached there and started abusing Abdul Rahman,
and prohibited him to not to use the said land for cultivation
purpose. The accused Najmul Hoda wanted to use that piece of land
for keeping the tractors. On the other hand, Abdul Rahman was not
agreeable and consequently a heated exchange of words followed
between them.
In the meantime, other appellants reached there with khanti,
lathi, farsa and danda in their hands. The informant also reached
there and asked the accused Najmul Hoda to stop abusing his father
upon which the informant was pushed by him on the ground and
thereafter Najmul Hoda dealt 3-4 tangi blow on the head of Abdul
Rahman followed by Fakhrul Hoda, who too attacked Abdul
Rahman with khanti causing bleeding injury on his forehead.
Similarly, accused Yusuf Hoda and Rafique Mian gave farsa blow
on Abdul Rahman. The blow dealt by Rafique Mian with farsa
caused cut injury on the left hand of Abdul Rahman.
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Other, appellant, namely Gulam Bari attacked Abdul Rahman with
bhala and the lady appellant Halima Khatoon attacked with lathi.
Lathi blows were also dealt on Abdul Rahman by Khurshid Alam.
Having sustained 3 and 4 tangi blows caused by accused Najmul
Hoda, Abdur Rahman fell down upon the ground and the remaining
accused persons assaulted the Abdur Rahman when he was lying
injured on the ground.
The fardbeyan further disclosed that the informant’s wife namely
Saira Khatoon tried to save his father-in-law Abdul Rahman and in
course of which, she too had received two tangi blows dealt by
Najmul Hoda. It has alleged that the appellant No. 2 Fakhrul Hoda
had fractured the hand of Abdul Rahman by giving blow with his
khanti. In course of the aforesaid assault, the accused, appellant no.
5 herein Yusuf Hoda had also given blow with the lathi portion of
farsa.
It is also alleged that the lady, appellant No. 6 herein, Halima
Khatoon broke the teeth of injured Abdul Rahman by giving blow
on his teeth with a danda while the aforesaid Abdul Rahman was
lying unconscious on the ground.
The informant’s wife Saira Khatoon had also received blow dealt
by accused appellant No. 2. The informant’s mother was assaulted
by appellant No. 2. The appellants had also assaulted ten years old
daughter of the informant namely Naushaba. Further, it was alleged
that the appellant No. 4 gave Naushaba lathi blows. The land owner,
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who lived adjacent to the place of occurrence, had come there on
hearing hulla. The appellants had also assaulted him.
It is further alleged that the appellants after launching said
murderous attack and injuring the informant’s party severely had
left the place of occurrence. Injured Abdul Rahman was lifted to his
house in injured condition by the informant and his brother. On the
following day, i.e., 02.01.1994, the injured Abdul Rahman was being
taken to Pratappur Police Station, but it is said that he died on the
way. The informant, in his company of his brothers and others had
reached at Pratapur Police Station with the dead body of his father
and there he narrated the entire occurrence and his fardbeyan was
recorded.
6. After instituting of the case under various offences including
Section 302 of the IPC against the appellants, the police
investigated into the same and after concluding the investigation,
submitted the charge-sheet against the appellants.
7. In course of the trial, the charges were framed under Section 302
and 323 of the IPC read with Section 148, 149 of the IPC.The
prosecution had examined all together 10 prosecution witnesses
and on the other hand, 4 witnesses were also examined from the
side of defence.
8. The learned Trial Court has convicted the present appellants for the
offence punishable under Sections 148 and Section 323 read with
149 IPC and Section 302 read with 149 of the Indian Penal Code
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and have been sentenced to undergo Rigorous Imprisonment for
life under Section 302/149 of the Indian Penal Code, against which
the instant appeal has been preferred.
9. However, All the appellants have been acquitted from the charge
under Sections 307 read with 149 IPC.
Arguments advanced by the learned counsel appearing for the
appellants:
10. The learned counsel appearing for the appellants has taken the
following grounds in assailing the impugned judgment:
(i) The prosecution miserably failed to establish the charge, as
per the accusation made against the appellants.
(ii) There is delay in instituting the FIR of 24 hours.
(iii) The Investigating Officer has not been examined, due to
which the appellants have seriously been prejudiced, reason
for prejudice is that the place of occurrence has not been
ascertained.
(iv) As per the admitted case of the prosecution, the death
occurred in another place, while the inquest report was
prepared in the concerned Police Station, and the doctor who
had carried the post-mortem has also not been examined.
(v) The conviction is based upon Section 149 of the Indian Penal
Code, even though there is no attributability, said to be
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crime showing the common object.
(vi) The allegation against the assault is mainly upon Najmul
Hoda, who is no more, the other appellants have been
convicted with the aid of Section 149 of the IPC, but very
surprisingly all the appellants have been acquitted under
Section 307 read with 149 IPC.
(vii) The learned trial Court has not taken into consideration the
important factual aspects that previously accused person had
lodged a case against the informant and as such false
accusation cannot be ruled out.
(viii) Further in the entire evidence no documentary evidence has
been brought by the prosecution regarding the said land has
been rented (batai) to the deceased or his family. Further the
alleged owner of the said land has not been examined in this
regard.
(ix) No independent witness has been examined herein and all
the witnesses who have been examined are the interested
witness.
11. Learned counsel, based upon the aforesaid ground, has submitted
that the impugned judgment therefore is not sustainable in the eye
of law.
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Arguments advanced by the learned Spl. Public Prosecutor
appearing for the State:
12. Per contra, Mrs. Lily Sahay, learned Spl. Public Prosecutor,
appearing for the State, has defended the impugned judgment by
taking the following grounds:
(i) If the testimony of the of the witnesses in entirety will be
taken into consideration, if cannot be said that the impugned
judgment suffers from any error.
(ii) Merely because the Investigating Officer has not been
examined, it cannot be said that the prosecution has failed in
view of the fact that the judgment of conviction is based on
the testimony of eye witnesses, i.e., P.W. 1, P.W. 4, P.W. 5 and
P.W. 8.
(iii) The learned trial Court has considered the testimony of these
witnesses,who are the eye witnesses, and their testimony
fully supports the prosecution version and as such, their
judgment of conviction is not fit to be interfered with.
13. The learned counsel appearing for the State, based upon the
aforesaid, has submitted that the impugned judgment, therefore is
not fit to be interfered with, hence the present appeal needs to be
dismissed.
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Analysis:
14. We have heard the learned counsel for the parties and appreciated
the arguments advanced on their behalf.
15. This Court is to consider the following issues:
(i) whether the prosecution has been able to prove the
charge beyond reasonable doubt,
(ii) whether the learned trial Court has well appreciated the
testimony of the witnesses, both the witnesses led on
behalf of the prosecution as well as the defence.
16. Both the issues, since are interlinked, and as such both are taken
together for its consideration, but before considering the said issue,
it would be apt to discuss the testimony of the witnesses.
17. PW 1 has stated that the incident took place 2½ years ago. Her
father-in-law Abdul Rehman Mian had taken the field of Vakil Mian.
He was digging it with a spade. Meanwhile Najbul Hoda reached
there with a tangi, Fakrul Hoda with a Khanti, Yusuf Hoda with an
Farsa, Rafiq with an Farsa, Ghulam Bari with a spear, Khurshid and
Halima Begum with a stick. Accused, Minhaj was also there with
them.
The accused said that the field will remain fallow for parking
the tractor. Rabi crops will not be sown in it. Khursheed caught
Abdul Rehman’s hand. Najbul first hit him on the head with the
sharp edge of Tangi four times. Fakhrul Hoda broke his right hand
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by hitting him with a khanti. On falling, Rafiq Mian cut his left hand
in two places with an axe. Yusuf swung the Farsa and hit him.
Ghulam Bari hit him a spear. Halima Begum broke his tooth by
hitting him with a Lathi.
Fakhrul Hoda started hitting her father-in-law on the head with
an axe and pulled out his brain matters. Nazmul Hoda hit her
husband with Lathi twice. Because of her protection, one stick did
not hit him. She had further testified that Fakhrul Hoda hit her also
on the shoulder and waist with the khanti. He went to her house
and hit her mother-in-law Hamida Khatun with a khanti. Khurshid
hit her daughter Naushaba Banu, aged 10, with a stick/Lathi. She
had further stated that her father-in-law died in the next morning
due to the beating.
18. She had further stated that her husband does his own farming and
they used to eat and drink separately from her father-in-law. She
had stated that she cannot say how much land her father-in-law
used to cultivate on Batai basis but this land belonged to Vakil Miya.
She had further testified that the accused used to quarrel with her
father-in-law earlier also.
19. She had further testified that her father-in-law was working alone
on the land and leveling the land with a spade. She had further
testified that she and her husband was also sitting there. She
further testified that when we reached there, no one was there
except us and the accused and all the accused were arguing with
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my father-in-law and the argument went on for about 5 minutes,
meanwhile no one from the village reached there.
20. In cross examination she stated that Khurshid stood up holding
both the hands of her father-in-law. The accused had surrounded
her father-in-law from all sides. Her husband was trying to free
him. But Najmul did not agree. All the accused attacked him
continuously. She could not count in the crowd how many blows
Fakhrul hit him with khanti. She further testified that her father-in-
law fell down and became unconscious. She too was injured while
trying to free herself. Her husband also fell down but did not
become unconscious. Blood oozed out of him too.
21. She further testified that her mother-in-law arrived there after
about 5 minutes. The accused went to the door and beat her
mother-in-law as well. She did not see her mother-in-law being
beaten. When her father-in-law fell, Nazmul Hoda was about to cut
his neck, but She saved him by hiding in her Aanchal. Her daughter
was also injured after being beaten. The incident took place at 5
o’clock. People from her village reached at 6 o’clock. She had
deposed that even before the villagers arrived, the accused had
gone to their home. She cannot tell the names of all those who
came. Her father-in-law was brought home by her husband and her
brother-in-law Jalauddin. She had stated that she went to the police
camp and immediately called the police and brought them the same
day. Her husband gave a statement to the police at home itself. She
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cannot say whether he signed his statement or not. Her statement
was not recorded with the police. The police had questioned her
about the incident. She brought medicine from the market and fed
it to the girl and her mother-in-law. She had deposed that there had
never been any dispute on the land where the incident took place.
Four accused were arrested the same night.
22. She told the police that Khurshid caught her father-in-law’s arm
and that Najmul hit him four times with axe and when her father-
in-law fell, he hit him with a spear and removed his brain and that
Fakhrul hit her on the shoulder with a spear and that he went to
their house and hit her mother-in-law and that Khurshid hit her
daughter with a Lathi and that Ghulam Bari hit her father-in-law
with a spear and that Halima broke his tooth with a stick/Danda
and that Minhaj broke his rib bone by stepping on his heart and
that Fakhrul broke her father-in-law’s right hand by hitting him
with a spear.
23. She had testified that after falling unconscious due to the beating,
he did not regain consciousness and died. She had further stated
that it is untrue that the accused did not beat her father-in-law and
that She did not see anything and she has given a false statement.
Minhaj has filed a case against her husband for arson. It is not true
that she told lies out of frustration.
24. PW 2 has stated that the incident happened 2½ years ago. She was
praying namaaz in her house. It must have been around 6 o’clock.
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After praying again, she was lighting the lamp in the house. Nallu
alias Fakhru Hoda hit her with a stick three times on her left arm,
and also hit her with the lathi side of a khanti on her hand and two
sticks on her waist twice and no one else hit her.The incident
happened with her husband. She recognized the accused. (The
witness shows the broken elbow of the left arm).
25. In her cross-examination, she had stated that she was not treated
by a doctor of Pratappur. The police did not question her.They had
a previous quarrel with Ghulam Bari and Rafiq. Fakhrul Hoda and
Najmul had testified on behalf of Ghulam Bari. It is untrue that she
has given false testimony. She had further stated that she was not
with her husband at the time of his death. Her husband died 2-3
days after Diwali.
26. PW 3 has stated that his signature was there on this Inquest
Report. It was prepared in the same process as the original. The
signature is marked Exhibit-1.He had signed before the police
inspector in the Police Station in front of dead body. He had taken
the dead body from the house.
27. PW 4 is the son of the deceased, has stated that the incident took
place about 2 years and 9 months ago. His father was levelling the
land taken on lease from Vakil Mian. He was also working with him.
Around 5 in the evening, Najmul Hoda was carrying a Tangi,
Fakhrul Hoda was carrying a Khanti, Rafiq Alam was carrying an
axe, Ghulam Bari was carrying a spear, Yusuf Karbari was carrying
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an axe and Wasir Alam was carrying a stick/Lathi. Wasir had
already caught hold of his father’s both hands. These people came
abusing and said that he cannot plough the field. Their tractor will
be parked here.
28. He had deposed that first of all, Nazrul Hoda hit his father on the
forehead with the sharp edge of the axe four times and due to
which lot of blood oozed out. Fakhrul Hoda broke his right arm by
hitting him with the sharp edge of the axe. Rafiq Mian cut his left
arm from above and below the elbow with an axe. A lot of blood
oozed out. Yusuf turned the axe upside down and hit him on the
ribs of his right and left side and thereafter his father fell down.
29. He had further deposed that Halima Begum had also come there.
Minhajul Hoda came on top of his father and when he fell, he
punched him with his shoe and broke his rib. He had further
deposed that Nazmul Hoda hit him on the forehead with a Tangi 2-
3 times Once with the sharp edge and twice from the blunt side, his
forehead was cut. Blood started flowing. Yusuf hit him on the hind
wing with an axe. Khurshid Alam hit him on the back of my waist
with a stick.
30. He had further testified that his wife Shairun Khatun also reached
there. Khurshid and Fakhrul Hoda hit her with the stick part of the
Khanti stick. His Father died on the spot. On hearing of noise/hulla,
her mother came out of the house. Fakhrul Hoda hit her right wrist
with a Khanti and broker her wrist. The accused ran away after
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beating her. He further testified that the accused had not own the
tractor but they are tractor mechanics and wanted that the
customer’s tractor would be parked on this land.
31. In his cross-examination, he has stated that immediately after
getting beaten up, he went home and offered Namaz and among the
attackers, Fakhrul Hoda followed him. He had further testified that
they beat and injured his mother. He had further testified that he
did not lock the door after entering the house and came out of the
house after the accused left. His father was taken to Tongkar and
Jalaluddin, his younger brother, was brought inside the house. He
specifically stated that they beat him for about 10 minutes and
Jalaluddin did not come to save him. He was watching the incident
from his turn.
32. He stated that his wife screamed while the incident was taking
place. But no one from the village came. The voice did not reach
anyone; they had gone to harvest paddy. He further deposed that
when he took his father at home at that time his father was
breathing. He went to the doctor in the evening but no doctor came.
There is a police camp at the school in his village-Monia. He
testified that the police came at around six in the evening and
arrested Nazmul Hoda, Fakhrul Hoda, Yusuf Karbari, Khurshid
Alam. The accused were at home and the police caught them at
their home.
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33. He further testified that when the police first arrested the accused,
they took the statement of his wife Shairun Khatoon and thereafter
he gave his statement. The Jamadar did not take their signatures on
the statements. Again he says that the Jamadar sahab did not write
his and his wife’s statements. The senior officer came to their house
the next day. His statement was first written at the police station at
around 10 o’clock. Other people also went to the police station with
him.
34. He stated that his father was being taken to Pratappur police
station the next day. His father had died at Diwali time. He cannot
say at what time he died. But it was around 7 in the night. He went
to the police station on the second of the month. He was fully
conscious. But he had become weak due to bleeding.
35. He stated that his father had wounds on his right hand, left hand
and forehead. His teeth were broken. There were four wounds on
his forehead. There were marks of sticks, axes etc. on his back. He
had stick wounds on his right, left wrist, forehead and back of his
right thigh. He reached the police station at around 10 am with the
dead body. The accused were also taken there by the Jamadar
Sahib. His statement was recorded at the police station. The
statement was written and signed by him there. He had deposed
that he, Ghulam Rabbani and probably Naeem had also signed it. He
did not read out the paper. He just signed it and went to the
hospital. He alone went to the hospital as an injured person. He did
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not faint in the hospital. He was in the hospital for 5-6 days. He was
admitted in the government hospital Pratappur. Since people from
home kept coming regularly, he remained informed about the
matters at home even while staying in the hospital.
36. He had testified that before this incident, Rafiq Mian had filed a
case against him and he was on bail in that case. He, his father and
his brothers Naeem, Ekram etc. are the accused in it. He does not
know whether the accused are witnesses in it.
37. He had further testified that Rabbani Miyan had gone to call the
watchman at night but he was not at home. The watchman came at
about 7 in the morning. He did not tell the watchman about the
incident. He had further testified that due to fear of the accused, no
one from Vakil Miyan’s (now dead) or his family will testify on their
behalf on the point of Batai-dari and there is no documentary
evidence of this.
38. The witness had further stated that at the time of the incident,
there was one doctor named Dr. Rakesh Singh in his village. He
went but he did not come out of fear. The inspector was shown the
blood-soaked soil. He had also seen the blood-soaked clothes.
39. He had deposed that it is false that he had told the inspector that
Rafiq and Ghulam Bari have no role in this case and that both of
them were ill and that at the time of the incident they were getting
treatment somewhere outside and that since they had filed a case
under section 379, he has given their names and that he had also
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given an affidavit to this effect on 23.1.95. He had signed on a plain
paper and it is false that after taking the statement the inspector
had also got his signature on it. He had further stated that it is
untrue that Ghulam Bari was under the treatment of Dr. Girindra
Kumar Singh from 28.10.94 to 3.11.94 and that accused Rafiq was
undergoing treatment under Dr. K.B. Sahay in-charge of Referral
Hospital, Dumriya from 12.10.94 to 8.11.94.
40. He stated that his father died the next day on the way to the
hospital. He cannot say at what time he died. He stated that he had
given statement to the police twice. He testified that he had told the
police that Khurshid caught hold of his father and that Najrul Hoda
hit him with a Tangi after catching him. He had also informed about
each accused holding weapons respectively and that Fakrul Hoda
broke the hands by hitting with a khanti and that Rafiq Mian cut the
hands and elbows by hitting with a Farsa.
41. He had testified that it is untrue that no incident took place at the
place and as he has said and that no fight took place and that they
used to commit crimes against Harijans and hence the extremists
killed them and that he has filed a false case.
42. PW-5 has stated that the incident took place on one evening of
Diwali, three years ago. His uncle Rehman Miyan was levelling the
field. He had taken Vakil Miyan’s field on sharecropping.
Meanwhile, Najmul Hoda, Fakhrul Hoda, Minhajul Hoda, Yusuf,
Khurshid, Rafiq Miyan, Ghulam Bari Miyan, Halima Bibi came. He
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saw that they were beating his uncle Rehman and threw him on the
field and he died on the spot. After this, they entered Salauddin’s
house and killed his mother and daughter Naushabba.
43. He has stated in his cross-examination that the incident took place
about 8-10 days before Diwali. He had testified It is untrue that
Rehman Miyan (deceased) never used to be a sharecropper with
Vakil Miyan. He has not seen any sharecropping papers.
44. He further stated that his statement was recorded at the police
station on the day of the incident. He did not tell the police that
Rehman Miyan was levelling the sharecropping land of Vakil Miyan.
He had told the police that at that time all the accused came there
and that Rehman Miyan died on the spot due to the beatings of the
accused. But he did not tell the police that they entered the house
and beat up Salauddin’s mother and daughter as well. He had
further stated that the police took the dead body to the police
station in the morning. The witness has stated that Rafiq Miyan has
also filed a case of theft against him.
45. He deposed that at around 6 in the evening, the police arrested the
accused and took them away. There are no Naxal activities here but
at the time of the incident, the police had camped there for about 5-
6 days. He cannot say why the police were there. He does not know
that hundreds of people have been killed by Naxalites in Pratappur
police station.
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46. He had further deposed that it is untrue that the accused have not
killed his uncle and deceased had enmity with the Naxalites and
that the Naxalites killed him and by keeping the dead body in the
house, the accused have been implicated falsely. This witness
further stated that he does not remember that he had told the
police that his uncle died on the way to the police station the next
day.
47. PW-6 is the tendered witness.
48. PW-7 is the tendered witness.
49. PW 8 has stated that the incident took place about 3 years ago at 5
p.m. The place of incident is Vakil Mian’s Bari. His father was
preparing the field for sowing wheat. He ran from the house on
hearing the noise of fighting. Najbul Hoda hit his father on the head
with the sharp part of the axe 2-3 times. Fakhrul Hoda broke his
father’s right arm by hitting him with a khanti. Yusuf turned the axe
upside down and hit his father with its back part. He had deposed
that Khurshid had caught hold of Abba and the accused were
beating him. Rasik cut off Abba’s left hand with an axe. Ghulam Bari
also hit Abba with an axe. He had further testified that his father fell
to the ground after being beaten. A lot of blood oozed from his
wounds. He had also stated that Halima Begum broke his father’s
teeth with a stick and after this, Minhaj climbed on his father’s
chest and pressed it forcefully and due to such assault, his father
went into a semi-dead state.
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50. Further, this witness had stated that Najbul Hoda and Fakhrul Hoda
ran to kill him with a Khanti. Fakhrul Hoda entered into his house
with a knife and beat and injured his mother Hamida Khatun. He
had further stated that his father stayed at home the whole night.
and he died on the way to Pratappur police station in the morning.
51. In his cross-examination, he had stated that the plaintiff Salauddin
is his real brother. He and his father (deceased) were preparing the
field two-three days before the incident. He was not preparing the
field on the day of the incident but he was also involved in
preparing the field before the incident. On the day of the incident,
he came later after hearing the noise. When he reached there,
Najmul Hoda and Fakhrul Hoda threatened him that if he comes,
they would kill him. So, out of fear, he stood aside and kept
watching the fighting. These people kept beating his father, brother
and his middle sister-in-law for five to eight minutes. They killed
his father and beat up his brother Salauddin and made him
unconscious and injured his sister-in-law. He had further deposed
that the accused surrounded his father from all sides and caught
him. They surrounded him and started beating him. After beating
him, they moved aside and went away and despite the noise, no one
from the village came at the place of occurrence.
52. He had testified that after the accused left, he went to his father but
he could not talk to him as he was unconscious. He was in a critical
condition and was not in a condition to go to the doctor. So, he was
21
2025:JHHC:20393-DB
not taken to the doctor for treatment. However, the compounder
was called but he did not come. His Father died the next morning.
He went to the police station later. The police took the body from
the house. He testified that it is untrue that Vakil Mian did not give
us land for farming. There is no documentary evidence of this. He
cannot say whether any member of Vakil Mian’s family can come to
court and testify or not. He had further testified that the police took
his statement on the second day of the incident.
53. He had stated that it is untrue that he has not given a statement to
the police that his father was preparing the field for sowing wheat
and Najmul Hoda hit him on the head with the sharp edge of the
tangi and hit his father two-three times with the tangi. He stated
that he told the police that Najmul Hoda and Fakhrul Hoda chased
him with a Khanti and but he ran away. He told the police that
while being taken to Pratappur police station, father died on the
way.
54. He had stated that the accused Rafiq Miyan has also filed a criminal
case against tem even before this incident in which he was also
made an accused. He had stated that it is untrue that at the time of
the incident Rafiq Miyan and Ghulam Bari were not in the village
and were getting their treatment done elsewhere. He further stated
that the police came to the village on the second day. He was in the
village when the police came. He and his brother showed the police
the crime scene. The police took the body away that day. He had
22
2025:JHHC:20393-DB
testified that it is untrue that he did not see the incident and that he
never saw any accused being killed and that he gave false
testimony due to enmity.
55. PW 9 has stated that he identifies the signature and handwriting of
Dr. B.N. Tiwari on this post-mortem report, marked as Ext.-2. He
identifies 2 injury reports in ink and pen of Dr. B.C. Banerjee
marked as Ext. 3 and 4, respectively.
56. In cross-examination, he stated that the P.M. was not held in his
presence. He knows nothing about the case. It was not written in
his presence. He knows Dr. B.C. Banerjee personally. He did not
write in his presence.
57. PW-10 has stated that this formal FIR and Inquest Report is in the
handwriting and signature of Police Station In-charge, Pratappur
Jagdish. He recognizes it, marked as Ext. 5 and 6, respectively.
Defence Witnesses:
58. DW-1 has stated that he knows both sides. Salauddin is his cousin.
Rehman Mian was his father of Salauddin who died. He does not
know how he died. He was in Ranchi when he died. He further
stated that when he returned, he came to know from Rabani Miyan
that his brother Abdul Rehman was kidnapped and killed by the
Naxalites. His body was found two days later. He had deposed that
land on Batai was never given to the deceased.
23
2025:JHHC:20393-DB
59. In the cross-examination he stated that the deceased Rehman was
not his own uncle but his cousin uncle. He had stated that he had
not asked anything from the accused yet he has come to testify
when the accused called me. No one has taught him anything.
60. He stated that he did not testify to the police. He came to the village
a week after the incident. He did not get any information about the
beating of Rehman’s (deceased) wife. He did not go to see the
deceased’s family. It is untrue that he has given false testimony to
save Rehman’s murderers.
61. DW-2 has stated that there was Abdul alias Rehman Miyan in their
village. The militants kidnapped him on Sunday night and also
kidnapped his son Salauddin. The militants killed him in the forest
and injured his son. Vakil Miyan lived in his village. He used to do
his own farming.
62. In cross-examination he had stated that he cannot tell the exact
date and time of Abdul Rehman’s kidnapping and murder but the
month was of Kartik and the kidnapping happened on Sunday and
his body was found on Monday. He did not see the kidnapping and
he was not there at the time of kidnapping and since there was no
need he has not mentioned the kidnapping anywhere till date.
63. DW-3 has stated that this medical certificate is in the handwriting
and signature of Dr. Girindra Kumar Sinha and he recognizes it,
marked as Exhibit ‘A’. He stated that this was not written in front of
him. He saw the doctor in Khusro.
24
2025:JHHC:20393-DB
64. DW-4 has stated that this medical certificate is in the handwriting
and signature of Dr. Krishna Bhushan Nath, he recognized it,
marked as Exhibit-A/1′. He stated that this was not written in his
presence. He used to get treatment from him regularly.
65. This Court first has gone through the findings recorded by the
learned trial Court in the impugned judgment, in order to consider
the legality and propriety of the impugned judgment with the
settled law and on assessment of the fact, as to whether the learned
trial Court has properly appreciated the testimony in order to come
to the conclusion that the prosecution has been able to be prove the
charge beyond all reasonable doubt.
66. The learned trial Court, based upon the testimonies of the
witnesses, particularly on consideration of the testimony of P.W. 1,
P.W. 4, P.W. 5 and P.W. 8, who have been considered to be eye
witnesses have found the charge proved against the appellants and
in consequence thereof, the accusation made against them have
been found to be proved, hence they have been convicted under
Section 302 with the aid of Section 149, while they have been
acquitted under Section 307 and 149 of the IPC, based upon the
ground as referred on behalf of the parties.
67. Before entering into merit of the case it would be apt to go through
the contentions of learned counsel for the parties. It has been
emphatically contended by the learned counsel for the appellants
that defence version as narrated by defence witnesses wherein it
25
2025:JHHC:20393-DB
has been stated that said land upon which was in center of dispute
had never been rented to the deceased, has not been properly
appreciated by the learned trial court rather their evidences as
brought forth by them in support of their plea of alibi has also been
thrown out in mechanical manner. Further the Investigating
Officer has not been examined, due to which the appellants have
seriously been prejudiced, reason for prejudice is that the place of
occurrence has not been ascertained. Further the death of the
deceased occurred in another place, while the inquest report was
prepared in the concerned Police Station, and the doctor who had
carried the post-mortem has also not been examined. It has been
contended that there is no attributability, said to be committed, by
one or the other appellants in commission of crime showing the
common object.
68. Further it has been submitted that the allegation against the assault
is mainly upon Najmul Hoda, who is no more, the other appellants
have been convicted with the aid of Section 149 of the IPC, but very
surprisingly all the appellants have been acquitted under Section
307 read with 149 IPC. The learned trial Court has not taken into
consideration the angle of previous enmity as the accused person
had lodged a case against the informant and as such false
accusation cannot be ruled out.
69. Further in the entire evidence no documentary evidence has been
brought by the prosecution regarding the said land has been rented
26
2025:JHHC:20393-DB
(batai) to the deceased or his family and the alleged owner of the
said land has not been examined in this regard as also no
independent witness has been examined herein and all the
witnesses who have been examined are the interested witness.
70. Per contra the learned counsel for the state has submitted that If
the testimony of the of the witnesses in entirety will be taken into
consideration, if cannot be said that the impugned judgment suffers
from an error and only because the Investigating Officer has not
been examined, it cannot be said that the prosecution has failed in
view of the fact that the judgment of conviction is based on the
testimony of eye witnesses, i.e., P.W. 1, P.W. 4, P.W. 5 and P.W. 8.
71. This Court, in order to appreciate the submissions advanced on
behalf of all the appellants with respect to the culpability of the
appellants, of commission of alleged offence under Section 302 the
Indian Penal Code vis-à-vis the evidences adduced on behalf of the
parties, deems it fit and proper to refer certain judicial
pronouncements in context of contention raised by the learned
counsel for the parties.
72. The ground has been taken by the learned counsel for the appellant
that the deposition of defence witness has not properly been
considered by the learned trial court.
73. There is no dispute about the legal position of law that the
testimony of the defence witness is to be given treatment at par
with the testimony of the prosecution witness as has been held by
27
2025:JHHC:20393-DB
Hon’ble Apex Court in the case of Munshi Prasad v. State of Bihar,
reported in (2002) 1 SCC 351 at para 3 which reads hereunder
as:–
“3. Without attributing any motive and taking the
evidence on its face value, therefore, it appears that the
place of occurrence was at 400-500 yards from the place
of Panchayat and it is on this piece of evidence, the
learned advocate for the State heavily relied upon and
contended that the distance was far too short so as to be
an impossibility for the accused to be at the place of
occurrence — we cannot but lend concurrence to such a
submission : a distance of 400-500 yards cannot possibly
be said to be “presence elsewhere” — it is not an
impossibility to be at the place of occurrence and also at
the Panchayat meet, the distance being as noticed above
: the evidence on record itself negates the plea and we
are thus unable to record our concurrence as regards
acceptance of the plea of alibi as raised in the appeal.
Before drawing the curtain on this score, however, we
wish to clarify that the evidence tendered by the defence
witnesses cannot always be termed to be a tainted one
by reason of the factum of the witnesses being examined
by the defence. The defence witnesses are entitled to
equal respect and treatment as that of the prosecution.
The issue of credibility and trustworthiness ought also
28
2025:JHHC:20393-DBto be attributed to the defence witnesses on a par with
that of the prosecution — a lapse on the part of the
defence witnesses cannot be differentiated and be
treated differently than that of the prosecutors’
witnesses.”
74. Further, the Hon’ble Apex Court has reiterated the same view in a
judgment rendered in the case of Mahendra Singh v. State of
Madhya Pradesh reported in (2022) 7 SCC 157.
75. Herein from the testimony of DW.1 who is the son of said Wakil
Mian who was the owner of the said land has categorically stated
that the land which was in center of the alleged occurrence had
never been rented to the deceased and no any document is
available in this regard. The aforesaid statement of this witness has
fully been substantiated by the prosecution because no
documentary evidence has been brought on record by the
prosecution in this regard.
76. Further DW.1 had stated that when he returned, he came to know
from Rabani Miyan that his brother Abdul Rehman(deceased) was
kidnapped and killed by the Naxalites. This statement of DW.1 has
been corroborated by the testimony of DW.2. Further it needs to
refer herein that P.W.6 although has been tendered by the
prosecution has specifically stated by him that Abdul
Rehman(deceased) and Sallauddin (son of the deceased and
informant) was taken away by the Naxalites and Abdul Rehman
29
2025:JHHC:20393-DB
was killed by Naxalites. For ready reference the relevant paragraph
of testimony of the P.W.6 is being quoted as under:
प्रतिपरीक्षणः – जैपुर के रहमान तमयााँ एवं सलाउद्दीन तमयााँ को
M.C.C. पकड ले गये। रहमान तमयााँ की हत्या कर तिये और
सलाउद्दीन को वे जख्मी कर तिये। वकील तमयााँ स्वयं खेिी करिा
था।
77. At this juncture it would be apt to refer herein that the evidence of
hostile witness cannot be discarded as a whole, and relevant parts
thereof which are admissible in law, can be used by the prosecution
or the defence but required to be subjected to close scrutiny.
Reference in this regard may be taken from the judgment rendered
by the Hon’ble Apex Court in the case of C. Muniappan and Ors v.
State of T. N reported in AIR 2010 Supreme Court 3718. The
relevant paragraphs i.e. 82 to 83 of the aforesaid judgment are
being quoted as under:
“82. In State of U. P. v. Ramesh Prasad Misra and Anr., AIR
1996 SC 2766 : (1996 AIR SCW 3468), this Court held that
evidence of a hostile witness would not be totally rejected
if spoken in favour of the prosecution or the accused but
required to be subjected to close scrutiny and that portion
of the evidence which is consistent with the case of the
prosecution or defence can be relied upon. A similar view
has been reiterated by this Court in Balu Sonba Shinde v.
State of Maharashtra (2002) 7 SCC 543 : (AIR 2002 SC
30
2025:JHHC:20393-DB3137 : 2002 AIR SCW 3619); Gagan Kanojia and Anr. v.
State of Punjab (2006) 28 2025:JHHC:5812-DB 13 SCC
516; Radha Mohan Singh @ Lal Saheb and Ors. v. State of
U. P. AIR 2006 SC 951 : (2006 AIR SCW 421); Sarvesh
Naraian Shukla v. Daroga Singh and Ors., AIR 2008 SC 320
:(2007 AIR SCW 6843); and Subbu Singh v. State, (2009) 6
SCC 462 : (2009 AIR SCW 3937).
83. Thus, the law can be summarised to the effect that the
evidence of a hostile witness cannot be discarded as a
whole, and relevant parts thereof which are admissible in
law, can be used by the prosecution or the defence.
78. Thus, on the basis of the aforesaid it is evident that the land which
was in center of the dispute has not been rented by way of any
document to the deceased or informant and further the land owner,
i.e., Wakil Mian has not been examined by the prosecution but son
of the Wakil Mian has been examined and he had substantiated the
fact that land has not been rented to deceased.
79. Further contention has been raised by the learned counsel for the
appellant that Investigation Officer has not been examined in this
case and it caused prejudice to the appellants.
80. It is settled position of law that the Investigating Officer is
responsible for gathering evidence, recording statements and
preparing the case for trial. The testimony of the Investigating
Officer is important for explaining the investigating process, the
31
2025:JHHC:20393-DB
evidence collected and how it connects to the accused. In absence
of these elements, it certainly causes prejudice to the accused and
they would be unable to properly defend themselves and it could
lead to acquittal.
81. Reference in this regard be made to the judgment rendered by the
Hon’ble Apex Court in the case of Munna Lal v. State of U.P.,
(2023) 18 SCC 661 wherein it has been held that whether or not
non-examination of investigating officer has caused prejudice to
the defence is essentially a question of fact and an inference is
required to be drawn having regard to the facts and circumstances
obtaining in each case. For ready reference the relevant paragraph
of the aforesaid judgment is being quoted as under:
39.— It is true that mere failure/neglect to effect seizure of the
weapon(s) cannot be the sole reason for discarding the prosecution
case but the same assumes importance on the face of the oral
testimony of the so-called eyewitnesses i.e. PW 2 and PW 3, not
being found by this Court to be wholly reliable. The missing links
could have been provided by the investigating officer who, again,
did not enter the witness box. Whether or not non-examination of a
witness has caused prejudice to the defence is essentially a question
of fact and an inference is required to be drawn having regard to
the facts and circumstances obtaining in each case. The reason why
the investigating officer could not depose as a witness, as told by PW
4, is that he had been sent for training. It was not shown that the
investigating officer under no circumstances could have left the
course for recording of his deposition in the trial court. It is worthy
of being noted that neither the trial court nor the High Court
considered the issue of non-examination of the investigating officer.
40. In the facts of the present case, particularly conspicuous gaps in
the prosecution case and the evidence of PW 2 and PW 3 not being32
2025:JHHC:20393-DBwholly reliable, this Court holds the present case as one where
examination of the investigating officer was vital since he could
have adduced the expected evidence. His non-examination creates a
material lacuna in the effort of the prosecution to nail the
appellants, thereby creating reasonable doubt in the prosecution
case.
82. The Hon’ble Apex Court in the case of Lahu Kamlakar Patil v.
State of Maharashtra, (2013) 6 SCC 417 has observed the certain
circumstances where the examination of investigating officer
becomes vital and the explanation regarding non-examination of
the I.O. must be satisfactorily explained. The relevant paragraph of
the aforesaid Judgment is being quoted as under:
18. Keeping in view the aforesaid position of law, the testimony of
PW 1 has to be appreciated. He has admitted his signature in the
FIR but has given the excuse that it was taken on a blank paper. The
same could have been clarified by the investigating officer, but for
some reason, the investigating officer has not been examined by the
prosecution. It is an accepted principle that non-examination of the
investigating officer is not fatal to the prosecution case. In Behari
Prasad v. State of Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] ,
this Court has stated that non-examination of the investigating
officer is not fatal to the prosecution case, especially, when no
prejudice is likely to be suffered by the accused. In Bahadur
Naik v. State of Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri) 1186] , it
has been opined that when no material contradictions have been
brought out, then non-examination of the investigating officer as a
witness for the prosecution is of no consequence and under such
circumstances, no prejudice is caused to the accused. It is worthy to
note that neither the trial Judge nor the High Court has delved into
the issue of non-examination of the investigating officer. On a
perusal of the entire material brought on record, we find that no
explanation has been offered. The present case is one where we are
inclined to think so especially when the informant has stated that
the signature was taken while he was in a drunken state, the panch
witness had turned hostile and some of the evidence adduced in the33
2025:JHHC:20393-DBcourt did not find place in the statement recorded under Section
161 of the Code. Thus, this Court in Arvind Singh v. State of
Bihar [(2001) 6 SCC 407 : 2001 SCC (Cri) 1148] , Rattanlal v. State
of J&K [(2007) 13 SCC 18 : (2009) 2 SCC (Cri) 349] and Ravishwar
Manjhi v. State of Jharkhand [(2008) 16 SCC 561 : (2010) 4 SCC
(Cri) 50] , has explained certain circumstances where the
examination of investigating officer becomes vital. We are disposed
to think that the present case is one where the investigating officer
should have been examined and his non-examination creates a
lacuna in the case of the prosecution.
83. Herein admittedly due to non-examination of investigating officer
the place of alleged occurrence has not been ascertained and
further the statement of the witnesses recorded under 161 Cr.P.C
has also not been fully substantiated. Further herein even the
blood-stained soil or the weapon which has been used in alleged
commission of crime has not been sent to the FSL. Further due to
non-examination of the investigating officer/police officer the
veracity of inquest report has not been fully established.
84. Thus, in the aforesaid circumstance the testimony of the
Investigating Officer is important for explaining the investigating
process, the evidence collected and how it connects to the accused.
In absence of these elements, it certainly causes prejudice to the
accused as they would be unable to properly defend themselves.
85. Further it is admitted case of the prosecution that the Doctor who
had conducted autopsy on the body of deceased has not been
examined and even post-mortem report has not been brought on
record which is the vital piece of evidence in order to substantiate
the testimonies of the eyewitnesses.
34
2025:JHHC:20393-DB
86. It needs to refer herein that the Division Bench of the High Court of
the Jharkhand, in the case of Sowam Kisku and others Vs. The
State of Bihar 2006 Cri LJ 2526, has observed that it is no doubt
true that in spite of the steps taken, the prosecution could not
procure the attendance of the doctor who conducted autopsy over
the dead body, but that could not have precluded the prosecution
from examining some other doctor from the same hospital who
knew the handwriting and signature of the doctor who conducted
autopsy.
87. Admittedly in the instant case prosecution had examine other
doctor as P.W.9 who had identified the signature and handwriting
of Dr. B.N. Tiwari on the post-mortem report and he also identified
the writing of Dr. B.C. Banarjee on the two injuries report but at the
same time he had stated that post-mortem was not held in his
presence and the Dr. B.C. Banarjee had not written in his presence.
For ready reference the testimony of this witness has been quoted
herein which reads as under:
1 identify the signature and handwriting of Dr. B.N. Tiwari on this
post mortem report Marked Ext. 2
2. There are two injuries reports in ink and pen of Dr. B.C
Banerjee. I identify both of them. Marked Exibits-3 and 4
respectively.
XXX Cross-examination XXX
3. P.M. was not held in my presence. I know nothing about the
case. It was not written in my presence
4. I know Dr. H.C. Banerjee personally He did not write in my
presence. I do not know anything about the case”35
2025:JHHC:20393-DB
88. It needs to refer herein that though Section 294 Cr.P.C provides for
no formal proof of certain documents, but it cannot take the place
of direct evidence of the doctor.
89. In the case of State of U.P. v. Lakhmi, (1998) 4 SCC 336, the
Hon’ble Apex Court has observed that no doubt it is the duty of the
prosecution to prove post-mortem findings in murder cases, if they
are available. Absence of such proof in the prosecution evidence in
a murder case is a drawback for prosecution. For ready reference
the relevant paragraph of the aforesaid judgment is being quoted as
under:
15. Learned counsel for the respondent, however, pointed out that as
the doctor who conducted post-mortem examination on the dead body
was not put in the witness-box in this case and it was argued on its
strength that in the absence of legally proved medical evidence no
finding can be reached that the deceased died due to blows inflicted
with “phali”. No reason is seen noted by the trial court or the High
Court for the non-examination of the doctor who conducted the
autopsy. No doubt it is the duty of the prosecution to prove post-
mortem findings in murder cases, if they are available. Absence of such
proof in the prosecution evidence in a murder case is a drawback for
prosecution.—”
90. On consideration of the above legal preposition, we are of the
considered view that, non-examination of a competent medical
practitioner, would virtually amount to denial of valuable right of
the accused to cross-examine the medical practitioner, who could
have addressed the intricacies of the said report.
91. Even ‘non-examination of the Investigating Officer and Medical
Officer does not ipso facto mean that the factum of murder will fail,
36
2025:JHHC:20393-DB
but it definitely weakens the case of the prosecution. Therefore,
this Court has to go the other materials available on record and the
see the credibility of the testimony of the witnesses in order to see
as to whether the case of the prosecution has been proved beyond
all reasonable doubt.
92. Further, it is evident from the testimony of P.W. 4, who is the
informant has sustained injury and along with him the injury has
also said to be sustained by Saira Khatoon, Naushaba Khatoon and
Hamida Khatoon. The injury report of P.W. 4 is available, said to
sustain injury in the back portion of his body.
93. The learned trial Court, based upon the aforesaid injury report, has
considered the testimony of P.W. 4 to be a reliable piece of evidence
and found in corroboration, which has been said to be corroborated
with the testimony of P.W. 1, P.W. 5 and P.W. 8.
94. While on the other hand, the defence has also examined 4
witnesses. D.W. 1 is the cousin brother of P.W. 4, Md. Salauddin
who has deposed that the deceased and the P.W. 4, Md. Salauddin
were kidnapped by the MCC personnel (Naxalites), who killed
Abdul Rahman and freed Md. Salauddin after causing injuries.
95. We have considered the testimony of D.W. 1 in entirety and
particularly, the cross-examination as has been done by the
prosecution so as to assess the reliability of the version which has
been deposed by DW 1 in the examination-in-chief, but has found
that even no question has been put with respect to the version
37
2025:JHHC:20393-DB
which has been said by the P.W. 1 on the issue of kidnapping of
Abdul Rahman and Md. Salauddin, P.W. 4.
96. Merely, a question has been put that whatever has been said by him
in the examination-in-chief that is incorrect, meaning thereby, the
version of DW 1 so far as the place to the kidnapping of the
deceased and the P.W. 4, namely Md. Sallauddin cannot be
disbelieved if no question contrary to that have been put by the
prosecution.
97. The DW 2, Ram Narayan Singh, has also corroborated the version of
DW 1 by saying the same thing of kidnapping of deceased and the
Md. Sallauddin, P.W. 4.
98. The question therefore is that by considering the testimony
adduced on behalf of the prosecution and the defence is as to
whether the learned trial Court has been able to consider the
witnesses adduced on behalf of both the sides in proper manner or
not.
99. The reliability of the testimony adduced on behalf of the
prosecution and defence on the basis of the corroboration needs to
be seen in order to come to the conclusion.
100. The version of defence witnesses is that the deceased and the P.W.
4 were kidnapped and Abdul Rahman had been killed while Mohd.
Sallauddin, after causing injury to him, had been freed.
38
2025:JHHC:20393-DB
101. This Court has considered the post-mortem report and found
therefrom that the time of death has been shown to be 36 to 42
hours and the FIR has been instituted on 02.11.1994, wherein the
reference of the occurrence has been said to there at 5 P.M. on
01.11.1994, while the time of institution of the FIR is in the
morning hours at about 11 A.M. on 02.11.1994.
102. If the deposition of the defence witnesses will be taken into
consideration, it is evident that two days from the date of
institution of FIR, the incidence of kidnapping of the deceased and
the P.W. 4 have been caused by the Naxalite and dead of the
deceased was found on Monday.
103. The question is that whether deceased and PW 4 had been
kidnapped two days prior to the institution of the FIR which is
being corroborated by the post-mortem report showing the time of
death for 36 to 42 hours prior to the 36 hours from the time of the
conducting the autopsy of the body of the deceased.The time which
has been assessed by the doctor, who had conducted the autopsy is
matching to the witnesses adduced on behalf of the defence .
104. This Court after going through the testimony of the prosecution
witnesses and the defence witnesses, has found that there are two
versions, both are contradictory to each other and in these
circumstances, so as to have a question to be put in course of the
trial so that the truth may come as there was non-examination of
39
2025:JHHC:20393-DB
the Investigating Officer. Such a situation has caused great
prejudice to the accused.
105. But this aspect of the matter has not been taken into consideration
by the learned trial Court rather the finding has been given that the
non-examination of the Investigating Officer does not assume any
bearing, since the case is based upon the testimony of the eye
witnesses but when two contradictory versions have been
produced by way of an evidence adduced on behalf of the
prosecution and defence, then it is incorrect on the part of the
learned trial Judge to have a finding when the case since is based
upon the testimony of the eye-witnesses hence no prejudice will be
said to be caused that could have been said to be correct if there are
no non-examination of the witnesses on behalf of the defence and
the case if was based upon the testimony of the prosecution
witnesses only, but that is not the case, hence, the examination of
the Investigating Officer assume importance for the purpose of
proper consideration to prove the acquisition made against the
present appellant.
106. Further, non-examination of the doctor in the light of such a
contradictive version in between the prosecution side and the
defence also assume bearing but this aspect of the matter has not
been taken into consideration by the learned trial Court.
107. The non-examination of the Investigating Officer also assumes
bearing since there is delay in institution of FIR but the said aspect
40
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of the matter has been dealt by the learned trial Court that merely
due to non-registration of the FIR, no prejudice will be said to be
caused, in view of the provision as contained under Section 157 of
the Code of Criminal Procedure wherein the police, on getting
information of any offence in either cognizable or non-cognizable
may rush to the place of occurrence and start investigation under
the power conferred under the Cr.P.C.. There is no denial upon the
aforesaid provision of law but merely there is statutory provision is
there, the issue of prejudice cannot be giving go by rather the issue
of prejudice is to be taken into consideration depending upon the
facts and circumstances involving in each and every case.
108. This Court based upon the aforesaid discussion is of the view that it
is not such a case, that is in the light of the contradiction in between
the testimony of the witnesses adduced on behalf of the
prosecution and the defence who have made out two different
cases, since the prosecution has made out a case that due to dispute
over a land, the occurrence took place while the defence witness
has adduced in the testimony that the deceased and the informant
were kidnapped and the deceased was killed while PW 4 was freed
after causing injuries to him.
109. This Court is of the view that there are two contradictory issues,
then the non-examination of the Investigating Officer cannot be
considered to cause no prejudice caused to the defence by taking
aid of Section 157 the Code of Criminal Procedure.
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110. After going through the Trial Court Records, it is evident that P.W. 4
has sustained injury and injury report of P.W.4 is available on
record but there is no injury report of other injured prosecution
witnesses. Since PW 4 has sustained injury, as such his testimony is
to be believed by learned trial Court but at the same time other
evidences available on record has been ignored which cannot be
said to be proper course of appreciating the evidence by the
learned trial Court.
111. Further it appears from the impugned order that weightage has
been given to the evidence adduced on behalf of the prosecution by
the learned trial court which is contrary to the settled law that
there cannot be any discrimination in consideration of the evidence
in between the evidence adduced on behalf of the prosecution and
defence rather the evidence either produced on behalf of the
prosecution or the defence are to be considered on parity.
112. It needs to refer herein that the learned trial Court has convicted
these appellants under Section 302 IPC with the aid of Section 149
IPC, but acquitted them under Section 307 read with Section 149 of
IPC.
113. There is no dispute that the conviction can be said to be there with
the aid of Section 149 but the specific attributability is to be there
of showing the commission of offence with a common object.
114. If the charge has been framed under Section 307, 302 read with
149 IPC then the ingredients of Section 149 IPC is to be taken into
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consideration for proving the charge under Section 307 and 302 of
the Indian Penal Code and the accusation so made under Section
149 of the Indian Penal Code cannot be segregated on the basis of
the accusation either made under Section 307 or 302 of IPC.
115. Herein if the accusation made under Section 149 of IPC as not
found available while assessing the testimony to prove the charge
under Section 307 IPC against the appellants then from where the
accusation made under Section 149 will be said to be there for
proving the charge under Section 302 of IPC.The moment the
accusation has not been found under Section 149 of IPC and while
acquitting the appellants under Section 307 then there cannot be
accusation again said to be there under Section 149 proving the
charge.
116. The learned trial court below have also overlooked the fact that the
most important witness namely Wakil Mian who had been named
as a witness in the First Information Report and also said to have
rushed to the place of occurrence being a resident of
neighbourhood of the place of occurrence after hearing the alarm
raised by the informant party at the time of assault and it was
further stated that he, too, had sustained injuries at the hands of
the appellants when he tried to intervene has not been examined.
Further as per the FIR the alleged occurrence was happened in
broad day light but surprisingly no independent witness like
villagers had not been examined.
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117. However this Court has conscious with the fact that if there is
cogent evidence adduced on behalf of eyewitness is available on
record then non-examination of independent witness has no
bearing upon the case of the prosecution but in the instant case
there is lot of contradiction between the eyewitnesses and further
doubt has also been crept up regarding the genesis of the alleged
occurrence as the son land owner who had been examined as DW.1
had stated that the said land has not been rented to the deceased or
the informant.
118. Further there is vital contradiction between the recital of FIR vis-a –
vis the testimony of the eyewitnesses. According to the First
Information Report, Abdul Rahman after sustaining injuries on his
person caused by the appellants on 1.11.1994 at 5 p.m. remained at
his house in an unconscious state but alive, but on the following
morning i.e. 2.11.1994 he was taken by the informant and his
brother P.W. 5 Md Nayeem and others to the police station and on
way he succumbed to the injuries. When the P.Ws reached to the
Police Station, they had brought the dead body of Abdul Rahman
with them but surprisingly in course of trial the witnesses have
deposed the before the court that Abdul Rahman after receiving the
injuries, had fallen unconscious and after some time he died at the
place of occurrence on 1.11.1994.
119. This Court is conscious with the settled position of law that minor
discrepancies, embellishments and contradictions in the evidence
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of the eyewitness do not destroy the essential fabric of the
prosecution case, the core of which remains unaffected. But at the
same time, it is equally settled that the discrepancies which go to
the root of the matter and shake the basic version of the witnesses
that can be annexed with due importance. More so when there is
need of corroboration of the testimony of eyewitness from other
available evidences, Reference in this regard be made to the
judgment rendered by the Hon’ble Apex Court in case of Sunil
Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra,
(2010) 13 SCC 657, wherein Apex court has dealt material
contradiction, which is quoted for ready reference-
30. While appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions had been of such
magnitude that they may materially affect the trial. Minor contradictions,
inconsistencies, embellishments or improvements on trivial matters
without effecting the core of the prosecution case should not be made a
ground to reject the evidence in its entirety. The trial court, after going
through the entire evidence, must form an opinion about the credibility of
the witnesses and the appellate court in normal course would not be
justified in reviewing the same again without justifiable reasons. (Vide
State v. Saravanan1.)
31. Where the omission(s) amount to a contradiction, creating a serious
doubt about the truthfulness of a witness and the other witness also
makes material improvements before the court in order to make the
evidence acceptable, it cannot be safe to rely upon such evidence. (Vide
State of Rajasthan v. Rajendra Singh2.)
32. The discrepancies in the evidence of eyewitnesses, if found to be not
minor in nature, may be a ground for disbelieving and discrediting their
evidence. In such circumstances, witnesses may not inspire confidence
and if their evidence is found to be in conflict and contradiction with
other evidence or with the statement already recorded, in such a case it
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cannot be held that the prosecution proved its case beyond reasonable
doubt. (Vide Mahendra Pratap Singh v. State of U.P.3)
33. In case, the complainant in the FIR or the witness in his statement
under Section 161 CrPC, has not disclosed certain facts but meets the
prosecution case first time before the court, such version lacks credence
and is liable to be discarded. (Vide State v. Sait4.)
34. In State of Rajasthan v. Kalki5, while dealing with this issue, this
Court observed as under : (SCC p. 754, para 8)
“8. … In the depositions of witnesses there are always normal
discrepancies however honest and truthful they may be. These
discrepancies are due to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition such as shock and
horror at the time of the occurrence, and the like. Material discrepancies
are those which are not normal, and not expected of a normal person.”
35. The courts have to label the category to which a discrepancy belongs.
While normal discrepancies do not corrode the credibility of a party’s
case, material discrepancies do so. (See Syed Ibrahim v. State of A.P.6
and Arumugam v. State7.)
36. In Bihari Nath Goswami v. Shiv Kumar Singh8 this Court examined
the issue and held: (SCC p. 192, para 9)
“9. Exaggerations per se do not render the evidence brittle. But it can be
one of the factors to test the credibility of the prosecution version, when
the entire evidence is put in a crucible for being tested on the touchstone
of credibility.”
37. While deciding such a case, the court has to apply the aforesaid tests.
Mere marginal variations in the statements cannot be dubbed as
improvements as the same may be elaborations of the statement made by
the witness earlier. The omissions which amount to contradictions in
material particulars i.e. go to the root of the case/materially affect the
trial or core of the prosecution case, render the testimony of the witness
liable to be discredited.
120. Thus on the basis of discussion made hereinabove this Court has
considered view that the alleged charges has not been proved
beyond reasonable doubt against the present appellants.
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121. The Hon’ble Apex Court in catena of decision has propounded the
proposition 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., reported in (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.”
122. Likewise, the Hon’ble Apex Court in the case of Krishnegowda &
Ors. Vrs. State of Karnataka, (supra), 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
47
2025:JHHC:20393-DBprinciple of criminal jurisprudence is that the accused is presumed
to be innocent until his guilt is proved beyond reasonable doubt.”
123. Further, it needs to refer herein 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 entire evidence, if the Judge
conscientiously and reasonably entertains doubt regarding the
guilt of the accused.”
124. It needs to refer herein that the Hon’ble Apex Court, in the case of
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Allarakha K. Mansuri v. State of Gujarat reported in (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 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. –”
125. 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 reported in (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
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.—“
126. This Court, therefore is of the view that the learned trial Court has
not followed the principle of proving the charge beyond all
reasonable doubt, rather has convicted the appellant by surmises
or conjecture and with pre-occupied mind.
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127. Accordingly, the impugned order needs interference, as such, the
impugned judgment passed by learned Ist Additional Sessions
Judge at Chatra in Sessions Trial No. 19/1996 is hereby quashed
and set aside.
128. The present appellants are hereby acquitted from the charges as
levelled against them.
129. In consequence thereof, the instant appeal stands allowed and
appellants are discharged from the liability of their bail bonds.
130. Pending Interlocutory Applications, if any, stands disposed of.
131. Let lower Court records be transmitted to the Court concerned,
forthwith.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
/A.F.R.
Samarth50