Patna High Court
Md. Rahman @ Rahman vs The State Of Bihar on 30 August, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1138 of 2016
Arising Out of PS. Case No.-149 Year-2012 Thana- PANDAUL District- Madhubani
======================================================
1. Md. Suleman S/O Md. Sanichar R/O Village- Gangali, P.S- Pandaul, Distt.-
Madhubani.
2. Md. Jahagir @ Jahangir Son of Sulemwan R/O Village- Gangali, P.S-
Pandaul, Distt.- Madhubani.
3. Md. Misrul Son of Md. Azij R/O Village- Gangali, P.S- Pandaul, Distt.-
Madhubani.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1076 of 2016
Arising Out of PS. Case No.-149 Year-2012 Thana- PANDAUL District- Madhubani
======================================================
1. MD. Firoz S/O Md. Shamshul R/O Village- Gangoli, P.S- Pandaul, Distt.-
Madhubani.
2. Md. Islam S/O Md. Shamshul R/O Village- Gangoli, P.S- Pandaul, Distt.-
Madhubani.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1137 of 2016
Arising Out of PS. Case No.-149 Year-2012 Thana- PANDAUL District- Madhubani
======================================================
Md. Abid @ Sultan @ Abid S/O Late Md. Yunus R/O Village- Bansuara, P.S-
Madhubani, Distt.- Madhubani.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1220 of 2016
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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Arising Out of PS. Case No.-149 Year-2012 Thana- PANDAUL District- Madhubani
======================================================
Md. Hanif @ Md. Hanif Mansoori @ Hanif Mansoori S/O Late Faudar
Mansuri R/O Village- Kanhauli, P.S- Jhanjharpur, Distt.- Madhubani.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 64 of 2017
Arising Out of PS. Case No.-149 Year-2012 Thana- PANDAUL District- Madhubani
======================================================
Md. Rahman @ Rahman Son of Late Mian Jan Resident of village -
Gangauli, P.S. - Pandaul, District - Madhubani.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 67 of 2017
Arising Out of PS. Case No.-149 Year-2012 Thana- PANDAUL District- Madhubani
======================================================
1. Md. Karim @ Karim S/O Md. Rahman @ Rahman R/O Village- Gangauli,
P.s- Pandaul, Distt.- Madhubani.
2. Md. Islam @ Islam Son of Md. Rahman @ Rahman R/O Village- Gangauli,
P.s- Pandaul, Distt.- Madhubani.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 445 of 2017
Arising Out of PS. Case No.-149 Year-2012 Thana- PANDAUL District- Madhubani
======================================================
Majnu Nadaf @ Majlum Nadaf @ Majnu S/O Late Madan Nadaf Resident of
Village- Ganguli, P.S.- Pandaul, District- Madhubani.
... ... Appellant/s
Versus
The State of Bihar
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
3/50
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1138 of 2016)
For the Appellant/s : Mr. D.K. Sinha, Sr. Advocate
Mr. G.C. Jha, Advocate
Mr. Alexander Ashok, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For the Informant : Mr. Gopal Jha, Advocate
Mr. Shreepal Jha, Advocate
(In CRIMINAL APPEAL (DB) No. 1076 of 2016)
For the Appellant/s : Mr. Ramakant Sharma, Sr. Advocate
Mr. Rabindra Kumar, Advocate
Mr. L.K. Sharma, Advocate
For the State : Mr. Dilip Kr. Sinha, APP
For the Informant : Mr. Gopal Jha, Advocate
Mr. Shreepal Jha, Advocate
(In CRIMINAL APPEAL (DB) No. 1137 of 2016)
For the Appellant/s : Mr. Sunil Kumar Pathak, Advocate
For the State : Mr. Sri Shivesh Chandra Mishra, Advocate
For the Informant : Mr. Gopal Jha, Advocate
Mr. Shreepal Jha, Advocate
(In CRIMINAL APPEAL (DB) No. 1220 of 2016)
For the Appellant/s : Mr. D.K. Sinha, Sr. Advocate
Mr. G.C. Jha, Advocate
Mr. Subhash Kr. Jha, Advocate
Mr. Alexander Ashok, Advocate
Mr. Shivnandan Sah, Advocate
For the State : Mr. Dilip Kr. Sinha, APP
For the Informant : Mr. Gopal Jha, Advocate
Mr. Shreepal Jha, Advocate
(In CRIMINAL APPEAL (DB) No. 64 of 2017)
For the Appellant/s : Mr. Bimal Kumar, Advocate
For the State : Mr. Sri Ashwani Kumar Sinha, APP
For the Informant : Mr. Gopal Jha, Advocate
Mr. Shreepal Jha, Advocate
(In CRIMINAL APPEAL (DB) No. 67 of 2017)
For the Appellant/s : Mr. Bimal Kumar, Advocate
For the State : Mr. Sri Dilip Kumar Sinha, APP
For the Informant : Mr. Gopal Jha, Advocate
Mr. Shreepal Jha, Advocate
(In CRIMINAL APPEAL (DB) No. 445 of 2017)
For the Appellant/s : Mr. Manish Kumar No 13, Advocate
For the State : Mr. Sri Dilip Kumar Sinha, APP
For the Informant : Mr. Gopal Jha, Advocate
Mr. Shreepal Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 30-08-2024
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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All these appeals have been filed under Section 374(2)
of the Code of Criminal Procedure, 1973 (hereinafter referred as
'Code') challenging the common judgment of conviction dated
16.09.2016
and order of sentence dated 20.09.2016 passed by
learned Sessions Judge, Madhubani in Session Trial No. 90/2013
(2847/2013 C.F.), Session Trial No. 155/2013 (1446/2013 C.F.),
Session Trial No. 1/2014 (4276/2014 C.F.) arising out of Pandaul
P.S. Case No. 149/2022 (G.R. No. 1890/2012). However, all three
aforementioned Session Trial Cases were amalgamated and tried
with Sessions Trial No. 90/2013, whereby all the appellants were
sentenced to undergo imprisonment for life and they are also liable
for fine of ₹ 5,000/- (Rupees Five Thousand) each for having
committed the offence punishable under Section 302 read with
Section 149 of the I.P.C. and are sentenced to undergo R.I. for five
years and they are held liable for fine of ₹ 5,000/- each for the
offence punishable under Section 307 read with Section 149 of the
I.P.C. and further sentence to undergo R.I. for two years for the
offences punishable under Section 148 of the I.P.C., the appellants
and five others also sentence to undergo R.I. for three years and
fine of Rupees One Thousand each for the offences punishable
under Section 27 of the Arms Act. They were further sentenced to
undergo R.I. for ten years and are also held liable for fine of
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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Rupees Two Thousand each for the offence punishable under
Section 3 of the Explosive Substance Act and further ordered that
the aforesaid amount of fine is realized the half of the same will be
paid to Sabida Khatoon, wife of Late Md. Ali or her son Jasim, and
half will be deposited in the treasury of State Government
Accounts. In case of default regarding the payment of fine, the
convicts will further undergo S.I. for three months in addition to
their substantive punishment. However, all the sentences were
ordered to run concurrently.
FACTUAL MATRIX:-
2. “The fardbeyan of Md. Jasim s/o Late Md. Ali Nadaf
R/o Village-Gangauli, P.S. Pandaul, District- Madhubani was
recorded by S.I. Kumar Brajesh S.H.O. Pandaul P.S., District-
Madhubani at 05:05 a.m. on 30.06.2012 at the door of the
complainant, wherein he has stated that on 29.06.2012, at about
02:00 p.m, the informant was sleeping in his house. He came out
of the house on hearing the sound of firing and explosion of bomb
in the courtyard where he heard the voice of Md. Kalam asking
others to search out Md. Jasim (informant) as Jasim was not at the
roof of the house. Then, the informant fled away from the
courtyard and hid himself. He then saw that Md. Kalam, Misrul,
Md. Jahangir, Md. Suleman, Md. Karim, Md. Islam, all armed,
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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were present along with 30-40 persons and some of them were
fleeing away towards West and some towards South. Thereafter,
he (informant) came at his house and found that his father Md. Ali
died by sustaining gunshot injury and his mother Safida Khatoon
sustained injury in her leg and when he went at the roof of his
house, he found that his brother Hakim, Rasid and Md. Nasim had
also sustained gunshot injury. Out of them, Md. Nasim was dead.
There had been a long standing enmity with the family of Md.
Shamshul and, during the said period, there had been dispute of
land in between Md. Shamshul and Sonelal Chaupal and Md.
Shamshul was under the impression that the family of the
informant was helping Sonelal Choupal and due to that, Md.
Shamshul, under a conspiracy, got a case lodged against him and
his other family members from his daughter-in-law and he
(Shamshul) along with his son Md. Firoz and Islam went to jail
where he (Shamshul) and his sons made conspiracy with the help
of Md. Hanif and local chowkidaar Md. Rahman and his son Md.
Islam and Karim committed the occurrence. Under a conspiracy,
Md. Shamshul along with his son Md. Firoz and Islam and one
Majnu Nadaf went to jail and from there committed the
occurrence with the help of his son Md. Kalam and Md. Chhedi,
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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Md. Misrul, Md. Jahangir, Md. Suleman, Md. Karim, Md. Islam
and other local chowkidaars and unknown persons.
2.1. After registration of the F.I.R., the Investigating
Officer started the investigation and during the course of the
investigation, he had recorded the statement of the witnesses and
thereafter filed the charge-sheet against the appellant/accused
before the concerned Magistrate Court. As the case was
exclusively triable by the Court of Sessions, the learned Magistrate
committed the same to the Sessions Court where the same was
registered as Session Trial No. 90/2013 (2847/2013 C.F.), Session
Trial No. 155/2013 (1446/2013 C.F.), Session Trial No. 1/2014
(4276/2014 C.F.).
2.2. Before the Trial Court, the prosecution had
examined 17 witnesses and also produced the documentary
evidence. Thereafter, further statement of the accused under
Section 313 of Code came to be recorded. After conclusion of the
trial, the Trial Court passed the impugned judgment and order of
conviction and sentence against which the appellants have
preferred the present appeals.
3. In Criminal Appeal (DB) No. 1138 of 2016, we have
heard learned counsel Mr. D.K. Sinha assisted by Mr. G.C. Jha and
Mr. Alexander Ashok for the appellant, Mr. Sujit Kumar for the
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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Respondent-State and Mr. Gopal Jha assisted by Mr. Shreepal Jha
for the Informant.
3.1. In Criminal Appeal (DB) No. 1076 of 2016, we
have heard learned senior counsel Mr. Ramakant Sharma assisted
by Mr. Rabindra Kumar and Mr. L.K. Sharma for the appellant,
Mr. Dilip Kumar Sinha for the Respondent-State and Mr. Gopal
Jha assisted by Mr. Shreepal Jha for the Informant.
3.2. In Criminal Appeal (DB) No. 1137 of 2016, we
have heard learned counsel Mr. Sunil Kumar Pathak for the
appellant, Mr. Shivesh Chandra Mishra for the Respondent-State
and Mr. Gopal Jha assisted by Mr. Shreepal Jha for the Informant.
3.3. In Criminal Appeal (DB) No. 1220 of 2016, we
have heard learned counsel Mr. D.K. Sinha assisted by Mr. G.C.
Jha, Mr. Subhash Kr. Jha, Mr. Alexander Ashok and Mr.
Shivnandan Sah for the appellant, Mr. Dilip Kr. Sinha for the
Respondent-State and Mr. Gopal Jha assisted by Mr. Shreepal Jha
for the Informant.
3.4. In Criminal Appeal (DB) No. 64 of 2017, we have
heard learned counsel Mr. Bimal Kumar for the appellant, Mr.
Ashwani Kumar Sinha for the Respondent-State and Mr. Gopal
Jha assisted by Mr. Shreepal Jha for the Informant.
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3.5. In Criminal Appeal (DB) No. 67 of 2017, we have
heard learned counsel Mr. Bimal Kumar for the appellant, Mr.
Dilip Kumar Sinha for the Respondent-State and Mr. Gopal Jha
assisted by Mr. Shreepal Jha for the Informant.
3.6. In Criminal Appeal (DB) No. 445 of 2017, we have
heard learned counsel Mr. Manish Kumar No. 13 for the appellant,
Mr. Dilip Kumar Sinha for the Respondent-State and Mr. Gopal
Jha assisted by Mr. Shreepal Jha for the Informant.
SUBMISSIONS ON BEHALF OF THE
APPELLANTS:-
4. Learned senior counsel Mr. D.K. Sinha appearing for
the appellants in Criminal Appeal (DB) No. 1138 of 2016 mainly
contended that though the prosecution has placed reliance upon the
so called eye-witnesses, all the eye-witnesses are near relatives of
the deceased and there are major contradictions, inconsistencies
and discrepancies in their deposition. Therefore, the deposition of
the said witnesses may not be relied upon. Learned senior counsel
referred the deposition of the prosecution witnesses and thereafter
contended that PW-9 was the only witness who was present in the
courtyard and, therefore, she claimed herself as the only eye-
witness to the entire incident. However, as per case of PW-9, she
along with her husband Md. Ali were sleeping in the courtyard.
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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PW-9 claimed that Kalam shot her husband after Hanif. Thus, as
per the case of the said witness, her husband was shot at twice,
first by Md. Hanif and then by Kalam. However, the post mortem
report of the deceased Md. Ali indicates that only one bullet was
recovered from his body. PW-9 further testified that she did not
know who shot her husband first. Contradicting her previous
statement, it is further submitted that, as per PW-9, 10 people
surrounded her and her husband at the time of shooting. After her
husband was shot, all the alleged assailants went to the roof where
her three sons were sleeping and they returned after 10 minutes. At
this stage, learned senior counsel referred the deposition given by
PW-15 i.e. Kumar Brajesh (S.I.) and thereafter contended that,
from the deposition of PW-15, it can be said that PW-9, who
claims to be an eye-witness, could not have been in a position to
see individuals using the staircase. At this stage, it is also
contended that none of the witnesses, including PW-9, were
present on the roof where Md. Abdul Hakim, Md. Shamim and
Md. Nasim were sleeping when they were attacked by the accused
person.
4.1. Learned senior counsel would further contend that
the prosecution has projected PW-9 as an injured eye-witness. She
sustained injuries. However, according to the medical opinion of
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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Doctor who had examined her and who has deposed as PW-17
before the Court, the injuries No. 1, 2 & 3 sustained by PW-9 were
simple in nature. Further, the Doctor stated that he could not
determine whether the injuries found on PW-9 were caused 10-12
hours prior. Further, the said injury report was prepared on
29.09.2012 while he had examined injured on 30th June, 2012,
based on the injury register. It is also contended that though PW-9
identified ten individuals, she did not recognize the person who
threw the bomb at her. It is also contended that the conduct of PW-
9 was also unnatural as she did not shout immediately but she
shouted after the accused left the place of incident after 10
minutes. Learned senior counsel, therefore, urged that this Court
may not rely upon the deposition of the said witness.
5. Learned senior counsel further submits that the
prosecution has also failed to establish actus reus and mens rea
against the appellants. There was no dispute or any kind of enmity
with Md. Suleman and Md. Misrul as per the deposition of PW-9.
It is contended that, as per the deposition given by the prosecution
witnesses, there was a dispute between Md. Ali and Md. Shamshul
over a shop. Thus, the dispute was only between the families of
Md. Shamshul and Md. Ali. The other accused persons have
nothing to do with the said dispute. In fact, all the other accused
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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persons are neighbors of PW-9 and, therefore, there was no reason
for the neighbors to kill four persons of the family of PW-9 and the
informant. Learned senior counsel, therefore, urged that the appeal
filed by these three persons, namely appellants Md. Misrul, Md.
Suleman and Md. Jahangir be allowed and the impugned judgment
and order rendered by the Trial Court qua these appellants be
quashed and set aside.
6. Learned counsel Mr. Bimal Kumar appearing for the
appellant Md. Rahman @ Rahman in Criminal Appeal (DB) No.
64 of 2017 and Md. Karim @ Karim and Md. Islam @ Islam in
Criminal Appeal (DB) No. 67 of 2017 has adopted the submission
canvassed by the learned senior counsel appearing in Criminal
Appeal (DB) No. 1138 of 2016. However, it has been further
contended that PW-9 did not name the appellant Md. Rahman @
Rahman in her statement given under Section 161 of the Code
before the Police. However, during the course of the trial, she
developed her story and named this appellant. In fact, the said
appellant is the choukidaar and, in the F.I.R. also, his name is
mentioned in the last portion of the F.I.R. that he also, in collusion
with Md. Shamshul, committed the alleged offences. Therefore, it
is submitted that conviction of the said appellant Md. Rahman
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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with the aid of Section 149 of I.P.C. is not sustainable in the eye of
law.
6.1. Learned counsel would further submit that so far as
the appellant Md. Karim @ Karim is concerned, he has been
implicated because he is the son of choukidaar i.e. Md. Rahman
and except that there is no specific role attributed against them. It
is pointed out that PW-7 Gulshan Khatoon (wife of the informant)
herself deposed, in Para-8, that they were standing by the side of
her asbestos house and being a co-villager, it is common that they
had assembled on the sound of firing and explosion of bomb.
However, the informant and his mother, because of old enmity,
implicated them in the incident in question. Learned counsel,
therefore, urged that the appeals filed by these appellants be
allowed and the impugned judgment and order be quashed and set
aside qua them.
7. Learned counsel Mr. Sunil Kumar Pathak appearing
for the appellant Md. Abid @ Sultan in Criminal Appeal (DB) No.
1137 of 2016 has mainly contended that the said appellant is not
named in the F.I.R. However, during the course of investigation,
the witness gave the name of the said appellant. It is submitted that
except PW-9 and PW-10, none of the prosecution witnesses has
attributed any role to the present appellant. Even PW-9 has stated
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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that the appellant Md. Abid @ Sultan along with the other accused
went on the roof and after 10 minutes, they returned and fled away.
Further, PW-10 (informant) has stated that, in the solar light, he
identified Md. Kalam, Md. Suleman, Md. Islam, Md. Jahangir,
Md. Misrul, Md. Rahman, Md. Islam, Md. Karim and Md. Hanif
armed with weapons. However, he did not give the name of the
appellant. It is submitted that, except the allegation of conspiracy,
no other allegation is levelled against the appellant herein. Learned
counsel, therefore, contended that the impugned judgment and
order be set aside qua the appellant/accused Md. Abid @ Sultan.
8. Learned senior counsel Mr. Ramakant Sharma
appearing for the appellants Md. Shamshul Nadaf, Md. Firoz and
Md. Islam in Criminal Appeal (DB) No. 1076 of 2016 has mainly
contended that the appellant No. 1, i.e. Md. Shamshul Nadaf has
expired on 31.05.2019 during the pendency of the present appeal
and, therefore, it is requested that this appeal be abated qua
appellant No. 1 Md. Shamshul Nadaf. Learned counsel argued the
case qua appellants No. 2 and 3 i.e. Md. Firoz and Md. Islam. It
has been mainly contended that even as per the case of the
prosecution, the said appellants were not present at the place of
occurrence and, in fact, they were in jail at the relevant point of
time. However, the only allegation against the said appellants is
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that, because of the dispute between the two families, the
conspiracy was hatched by the family members of Md. Shamshul
Nadaf, including the present appellants, with the other co-accused.
In pursuance of the said conspiracy, the other co-accused went at
the house of the deceased and killed four family members of the
informant and PW-9. It is submitted that there is no evidence led
by the prosecution connecting the appellants of the said appeal
with the other co-accused. Learned senior counsel, therefore, urged
that the Criminal Appeal (DB) No. 1076 of 2016 be allowed and
the impugned judgment and order be set aside qua the said
appellants.
9. Learned counsel Mr. Manish Kumar No. 13 appearing
for the appellant in Criminal Appeal (DB) No. 445 of 2017 has
adopted the submission canvassed by the learned senior counsel
appearing in Criminal Appeal (DB) No. 1076 of 2016. It is
submitted that the appellant Majnu Nadaf @ Majlum Nadaf @
Majnu is the brother of Md. Shamshul Nadaf and, merely because
he is the brother of the said accused, he has been implicated. It is
submitted that the appellant Majnu Nadaf is not named in the
F.I.R. However, during the course of investigation, he has been
implicated by alleging that conspiracy was hatched to kill the
deceased. The appellant has been convicted with the aid of Section
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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120B of the I.P.C. However, there is no evidence led by the
prosecution that the present appellant hatched conspiracy with the
other co-accused with a view to kill the family members of the
informant and PW-9. It is contended that there is no evidence that
the said appellant was present at the place of incident at the time of
occurrence. In fact, as per the case of prosecution, the said
appellant was in jail at the time of incident. Thus, despite the fact
that the said appellant was not present at the place of occurrence,
he has been convicted by the Trial Court. Learned counsel,
therefore, urged that the impugned judgment and order qua the
appellant be quashed and set aside.
SUBMISSIONS ON BEHALF OF STATE AND
INFORMANT:-
10. On the other hand, learned A.P.P. and learned
counsel for the informant have vehemently opposed the present
appeals. Learned counsels mainly contended that the present is a
serious case wherein it is alleged that the concerned accused have
killed four persons of one family. It is submitted that the informant
and his family members have seen the incident in question and
they have corroborated the version given by PW-9. It is submitted
that PW-9 is the injured witness whose husband and 3 sons died in
the said incident. PW-9 also sustained injury. It is submitted that
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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PW-9 has specifically given the name of 10 persons who were
present at the place of incident and the role played by the
concerned accused is also narrated by her. The medical evidence
also supports the version given by the injured eye-witness i.e. PW-
9. Even the Doctor, who had examined PW-9, has also given
deposition before the Court. Injury certificate has been issued by
the said Doctor. It is submitted that there was no reason for PW-9
to falsely implicate the appellants herein. It is also contended that
the prosecution has also pointed out the motive on the part of the
accused to commit the alleged crime. It is further submitted that
the 10 accused named by PW-9 were present at the place of
incident and, therefore, all the 10 accused persons were the
members of unlawful assembly. Therefore, the Trial Court has
rightly convicted all the accused persons for the commission of the
alleged offences. It is further submitted that, so far as family
members of Md. Shamshul Nadaf i.e. the appellants of Criminal
Appeal (DB) No. 1076 of 2016 and Criminal Appeal (DB) No. 445
of 2017 are concerned, it has been specifically alleged that though
the said accused persons were in jail, they went inside the jail
because of the systematic planning and as a part of the conspiracy
hatched by the said accused. Learned counsel, therefore, urged that
the said accused have been rightly convicted with the aid of
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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Section 120B of I.P.C. Learned counsel for the respondent,
therefore, urged that when the prosecution has proved the case
against all the accused beyond reasonable doubt, no error has been
committed by the Trial Court while passing the impugned
judgment and order.
ANALYSIS OF ORAL EVIDENCE:-
11. We have considered the submissions canvassed by
the learned counsels for the parties. We have also perused the
evidence of prosecution witnesses and also perused the
documentary evidence exhibited.
12. Evidence of PW-1 Kapal Mandal and PW-2 Ram
Dhani Chaupal need not be gone into as they have not supported
the case of the prosecution and they have been declared hostile.
13. PW-3 Sona Lal Chaupal has stated, in his
examination-in-chief, that the incident occurred at around 02:30-
03:00 in the night. When he went in the morning, he saw that Md.
Ali, his eldest son and two other persons whose names were not
known to him, all had died and Md. Ali’s wife was injured.
13.1. In his cross-examination, he has stated that
Shamshul built a house of asbestos there and started living with his
family. Even at the time of the incident, his family lived there.
After the incident, people looted their house and now it is lying
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vacant. He does not know as to who had looted the house. He has
stated that he had ancestral friendship with Ali’s family. They used
to come and go to his house. He had sought Ali’s help in the land
dispute. He has further stated that his house is two bighas (local
unit of distance) away from the place of incident. There are two
houses in between. He used to come and go to the place where the
incident took place.
14. PW-4 Md. Jumarati has stated, in his examination-
in-chief, that the incident occurred on the night of Thursday on 29 th
June, 2012. The time was around 02:00 in the night. He was in his
house and came out after hearing the bomb explosion. He found
that Suleman, Jahangir and Nisrul armed with weapons were at the
door of Nasim and Jasim. They had knife, pistol and bombs in the
bags. Islam, Karim and Rahman were also there. Kalam was also
there. There were 25-30 unknown persons there. Kalam had a
pistol in his hand. Kalam threatened him that he would shoot him
if he comes out. After noise and bombings subsided, he came to
Md. Ali’s door and saw that Kalam was leaving his house with a
pistol in his hand. Md. Ali was lying dead on the verandah. Ali’s
wife was hit by a bomb. When he went to the roof, he found that
Nasim’s head was chopped off and he was lying dead. Rashid and
Hakim were writhing in pain. At that time, the vehicle of Police
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arrived on the spot and took Rashid and Hakim to D.M.C.H. They
died on their way to D.M.C.H. The reason for the said incident is a
land dispute.
14.1. In his cross-examination, he has stated that the
bombing site is at a distance of four laggi (local unit of length)
south of his house. His house and Md. Ali’s house is in between.
He was in the house when he heard the sound of bomb explosion.
He got out of the house immediately after the bombing subsided.
At that time, there were 20-25 people. These people were at the
door of Md. Ali. There were people from outside the village. It is
stated that only he came out of the house on hearing hulla. The
people living nearby did not come out of their house. He has
further stated that, after the people left, he entered into Ali’s house
first to the verandah, then to the roof and came down from there
and took the injured persons to the Hospital. The injured were sent
to D.M.C.H. on Police vehicle. He also went with them. Only he
went from the village. The injured persons i.e. Md. Hakim, Md.
Rashid and Md. Ali’s wife were laid in the vehicle and taken to
Hospital. He remained in D.M.C.H. for a week and returned to the
village along with those who were treated. He gave the statement
to the Inspector at his home a month after the incident. He has
further stated that there was a land dispute between Sonelal and
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Shamshul. The accused persons had no land dispute with Jasim
and Ali. When the accused persons were at the door, he did not go
there but saw the incident. After the accused left, he went to the
place of occurrence. When he reached at the place of occurrence,
many people had gathered there. He can tell the name of few men
amongst them. He identified Mahiuddin, Chirag Ali, Saiul, Bhujai,
Jalesar and many other people who were not acquaintances to him.
This incident occurred on the roof and door of the house. He went
to the roof where the incident was occurred. He don’t know as to
why the incident occurred. The accused Suleman and Rahim have
no land dispute with the family of the informant-Jasim. Jasim is
his cousin (father’s brother’s son). There are 30-40 houses between
Chowkidar Rahman’s house and Jasim’s house. There is the house
of accused Suleman to the east in front of his house.
15. PW-5 Chirag Ali has stated, in his examination-in-
chief, that the incident occurred at 02:00 a.m. on 29.06.2012. He
was at his home at that time. He woke up after hearing the sound
of firing and when he went to the door, he saw that 25- 30
miscreants were firing bullets and exploding the bombs at Md.
Ali’s door. A solar light was lighting there, in which he identified
Rahman Nadaf, Islam Nadaf, Karim Nadaf, Suleman and Jahangir
but could not identify others. When he was going to place of
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occurrence, the miscreants said that if he comes there, they would
shoot him. After committing the crime, the miscreants went
towards the west and later when he went to place of occurrence, he
saw that Md. Ali had sustained gunshot injury. His wife had also
sustained gunshot injury. Both of them were on the verandah. Md.
Ali was dead. After that, he went to the roof of the house and saw
that Hakim, Chhotu, Rashid (all three brothers) were lying injured
on the roof and were unconscious. The female members of the
house were screaming. After that, Police came and took Hakim,
Rashid and his mother to Darbhanga for treatment. Rashid and
Hakim died on the way.
15.1. In his cross-examination, he has stated that among
those who died, the deceased Md. Ali is his brother and deceased
Hakim is his nephew (brother’s son) and deceased Rashid and
Chhotu are also his nephews (brother’s sons). He does not know as
to how many accused persons in the name of Islam, is involved in
this case. The informant of this case, Md. Jasim is the son of his
younger brother. There was a case regarding scuffle going on
between his brother/ nephew and the accused. The cases were
going on from both sides. There was a dispute between the two
parties regarding the running of the cotton ginning machine. In
both the cases which were already going on, he was neither an
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accused nor a witness in any of those cases. The case was going on
in Madhubani. After the incident, he was constantly living at his
home. This statement was given to the Inspector one month after
the incident. There is an unpaved road between the two houses of
Md. Ali. Md. Ali’s family members live in both the houses. At the
time of incident, Rashid lived in the house which lies in the west
and Hakim lived in the house which lies in the east. Solar light was
installed at Md. Ali’s door which is to the north of his door. When
he woke up, other members of his family woke up and everyone
came out of the room. He did not see whether the people in the
neighborhood had come out of their house or not. At a distance of
10 laggi (local unit of distance) north of his house, miscreants
were exploding bombs and firing bullets. They created an uproar
upon hearing the sound of bombing. When the hulla was made, no
people from the neighbourhood came out of their houses. By the
time the miscreants were at the place of occurrence, he was at the
door. His family members were also there with him. No one had
come at Md. Ali’s door before him. There are two houses in
between his house and the place where the accused persons were
shooting. The explosion of 25-30 bombs and bullets were heard.
All these sounds happened within 10-15 minutes. There was a
cemented staircase and the way to stairs from inside the house and
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there was no door inside the boundary of the staircase. He stayed
on the roof for 5 minutes. After he went on the roof, 5-6 people
went there. When he was on the roof, those people came and went
down here and there. There was blood spilled over on that roof.
Those who died at place of occurrence, were not taken and the
other four injured persons were taken to Darbhanga Hospital. Md.
Ali and Chhotu were not taken. He cannot tell the address of 25-30
men who were miscreants. There was no one from his village
except the person whose name was told by him.
16. PW-6 Sairul Khatoon has stated that, on the day of
occurrence at 02:00 a.m., she was sleeping in her house. When she
woke up after hearing the explosion of bombs and bullets, she
came to the door and looked around. She saw that Kalam was
roaming around her brother Md. Ali’s door with a pistol. He told
them to move aside or he would shoot them. There were 20-25
men at Ali’s door. Among them, she saw Rehman Nadaf, Jahangir,
Suleman Nadaf, Misrul Nadaf, Karim Nadaf and Islam. These
people were firing bullets and throwing bombs. After firing the
bullets and throwing bombs, they left towards the south-west
direction. Then she went to place of occurrence and saw that Md.
Ali was lying dead and her sister-in-law Safida was lying in an
injured condition due to the bomb blast. When she went to the
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roof, she saw that her younger nephew Naseem was lying dead
after being injured. Rashid was also injured and was sobbing. Her
nephew Hakim was also in his last stage after being injured. After
the criminals left, both daughters-in-law of Samshul and Chhedi
came to Md. Ali’s house looked for them and went away. After
that, a Police vehicle came there and took the injured persons to
the hospital. Hakim and Rashid died on the way.
16.1. In her cross-examination, she has stated that her in-
law’s house is in the same village as her maternal house. She had
stated all the above mentioned things to the Police after one and a
half months. She was at her home after the occurrence. She has
further stated that the Police arrived at the place of occurrence, ten
minutes after the criminals had fled the spot. After the accused
persons fled away, no one picked up the injured till the arrival of
the Police. The injured persons were brought down from the roof
by the Police only. The injured persons who were alive were taken
to Darbhanga in a jeep and those who died on the spot were later
taken by the Police. Those who died, died below.
17. PW-7 Gulshan Khatoon has stated that on the day of
incident at 02:00 a.m. on hearing the sound of bomb explosion, she
woke up. Her husband also woke up and went away from the
house. When she peeked through the window, she saw that Kalam
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was holding a pistol in his hand and saying that Jasim was not on
the roof and to search for him. After that, she saw that there were
20-25 people with Md. Kalam. Among them, she identified
Suleman, Jahangir, Misrul, Rahman, Karim and Islam. They were
standing adjacent to the place where she was sleeping. She
identified them in the light of vapor light. She has further stated
that the Police came and took the husband’s elder brother and
younger brothers who were injured in the jeep. Her husband’s
elder brother and younger brothers died on the way while her
mother was admitted in Darbhanga Hospital.
18. PW-8 Rubana Khatoon has stated, in her
examination-in-chief, that the informant Md. Jasim is her brother.
She was sleeping in her house at the time of occurrence. She woke
up upon hearing the firing of bullets and looked through the
window that Kalam was holding a revolver in his hand and
enquiring about Jasim. She looked in the vapor light that there
were 20-25 men along with him. Her brother scaled the wall and
ran off. Out of 20-25 men, she identified Suleman, Jahangir,
Misrul, Rahman, Islam, Karim, Phooldan, Hanif and Islam. These
people killed her family members and went away. After those
people left, Shamshul’s two daughters-in-law Firoza Khatoon and
Dukhni Khatoon, Islam’s wife Unnat Khatoon and Chhedi came at
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the door and looked and after seeing everyone, returned back.
After that, she came out of the house and reached at the door and
saw that her father had died and mother had sustained injury
caused by bomb in her left leg and she was writhing in pain. After
that, she went to the roof and saw that Abdul Hakim and Shamim
were writhing in pain. Nasim was dead. He had been hit by
gunshot in the head. Shamshul was already having a dispute with
her family regarding shopkeeping resulting in this incident. Due to
this enmity, Shamshul got a false case filed against him by his
daughter-in-law and he went to jail and got their family members
killed by hatching a conspiracy. At the same time, the villagers and
Police came there and took her two brothers and her mother to
Darbhanga Hospital in a jeep. Her two brothers Hakim and
Shamim died on the way and her mother was admitted to
D.M.C.H.
18.1. In her cross-examination, she had stated that ten
days prior to the said incident, Shamshul went to jail with some
family members. He has been in jail ever since. She has further
stated that 15 persons had reached at the spot of incident earlier.
Those 15 persons were from her village. She also went to the roof
along with other persons. She stayed on the roof. She stayed there
for 5 minutes. When Police came, she accompanied them. It is
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stated that, in this case, there are a total of three accused persons
whose names are Islam. She says that the father’s name of one
person named Islam is Rehman. Daroga took her statement in the
morning after the occurrence. She told Daroga that there had been
dispute with Shamshul’s family and, hence, this case has been
filed. It is wrong to say that her statement was not recorded before
the Police.
19. PW-9 Safida Khatoon is the mother of the
informant-Jasim. On hearing the sound of bomb explosion, she
saw that Md. Hanif from Jhanjharpur, Kanhauli was standing near
her. He shot her husband, upon which she screamed. Then Kalam
said “kill her too”. Then a man threw a bomb on her which hit her
leg. The shrapnels from the bomb explosion caused burns on other
parts of her body. After that, Kalam shot at her husband. After that,
Suleman, Jahangir, Misrul, Kalam, Rehman, Islam, Karim and
Sultan went on the roof. After ten minutes they came down from
the roof and passed by her. On her scream, all ran away towards
west and south direction. She had further stated that they had prior
enmity with Shamshul over shopkeeping, as a result of which, this
occurrence took place.
19.1. In her cross-examination, she had stated that she
went to Darbhanga Hospital in a Police jeep. No one from her
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family went for her treatment, only the Police went. She was in
Darbhanga Hospital for almost a month. She gave the statement on
the hospital bed in front of the Inspector, eight days after the
incident. She has further stated that the bomb hit her foot. She was
standing when the bomb hit her. She did not see the person who
fired first bullet at her husband. The second time, Kalam shot her
husband at point blank range. Kalam shot her husband by sticking
gun to his ribs. She was sitting there when her husband was shot.
She has further stated that Daroga did not take the burnt clothes
which she was wearing. When Kalam shot at her husband, at that
time, her husband was already hit by the bullet and was writhing in
pain. The weapon with which Kalam had fired the bullet was about
1.5 cms. (bitta) in length. It is stated that Islams’ wife had filed a
case in which Islam, his father, his uncle Mazloom, Islam and
Firoz went to jail. She does not remember the name of the person
who had filed the case. The woman’s maternal house, who had
filed the case, was at Sakri Kanhauli. Islam’s wife had filed the
case ten days before the said incident. Her husband had a dispute
with Shamshul over a shop. Before the dispute, Shamshul used to
work at her shop.
20. PW-10 Md. Jasim is the informant of the case. He
has stated, in his examination-in-chief, that the incident took place
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at 02:00 a.m. on 29.06.2012. He hid himself in the bushes
adjacent to the house and saw in the flash of solar light that Md.
Kalam, Md. Suleman, Md. Jahangir, Md. Misrul, local chowkidar
Md. Rehman, his son Md. Islam, Md. Karim and Md. Hanif
(resident of Jhanjharpur), were armed with weapons. Apart from
them, there were 30-40 more people whom he also identifies. They
were running towards south and west direction. After the said
incident occurred, he informed Manigachhi Police Station. After
ten minutes, the policemen of Manigachhi Police Station came
there and then ten minutes later, the policemen of Pandaul Police
Station came there. The incident happened between him and
Shamshul due to an old dispute related to shopkeeping.
Meanwhile, a land dispute also started between Shamshul and
Sone Lal Chaupal. It is further stated that Shamshul hatched a
conspiracy and got his younger daughter-in-law Ummat Khatoon
register a false dowry act and then surrender himself and went to
jail along with Md. Firoz, Islam and his brother Md. Majlum.
Then, as per the pre-planning from the jail itself, he sent his two
sons Md. Kalam and Md. Chhedi to commit the said incident in
connivance with the local persons like Md. Rahman, Md. Karim,
Md. Hanif of Jhanjharpur, Islam Mouahi, Chandeshwar Das and
Md. Sultan. Even before this case, Shamshul’s son led a fatal
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attack on his father in which his father was badly injured, but
somehow he survived.
20.1. In his cross-examination, he has stated that Ummat
had lodged a case in Pandaul Police Station 10-12 days before the
incident. Some days before the incident, he came to know that
Islam, Firoz and his brother Md. Shamshul were in jail. On the day
of incident, he came to know that Ummat had lodged a case
against her father-in-law, husband and brother-in-law. In the
morning of the incident, he came to know that Shamshul, his two
sons and his brother were in jail. It is also stated that the accused
Shamshul also worked in his shop making quilts. He was a worker
in his shop for three months. Next season, Shamshul opened his
shop in front of his shop. The enmity started after opening of the
shop. On the day of the incident, no male member of the family
slept in the clay-tiles house except him. He came out of the house
on hearing the bomb explosion and bullet sound. Female members
did not come out of the house. The hand-pump is 10 feet away
from the bushes in which he was hiding and that hand-pump is
private. He has further stated that, after the incident, when he went
to the roof, there was Md. Jumarati who was the brother of Khalil.
When he reached to the place of occurrence, he did not see Khalil
and Ramzani there. Apart from his family, when he went to the
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place of occurrence, there were 10-15 people there. He does not
remember the names of those 10-15 people. It is not true that the
local accused in this case have been falsely implicated by them
due to dirty local politics and local factionalism. It has also been
stated that there was a case going between him and Misrul’s family
in the past, but it was later reconciliated.
21. PW-11 Md. Shakil Nadaf has deposed that, on the
day of incident, he woke up around 01:30-2:00 a.m. after hearing
the explosion of bomb and bullet. He came out of his house and
peeped in and saw that Md. Kalam was holding a pistol in his hand
and was saying to shoot Jasim and shoot whoever else is there.
Along with Kalam, Md. Rehman, Suleman, Md. Misrul, Jahangir,
Karim, Islam, Hanif were also carrying bombs in their hands.
Apart from them, there were 10-15 people whom he did not
identify. After committing the crime, some went to the west and
some went to the south direction. After this, Shamsul’s wife, his
two daughter-in-laws and his son Chhedi came out and looked into
Jasim’s house and returned. After 10 minutes, he also reached Ali’s
house where the incident occurred. He saw that Md. Ali was shot
dead and his wife was hit by a bomb. The people who had reached
the roof before him were saying that other persons had died on the
roof too. Then he also went to the roof and saw that Chhotu @
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Nasim was dead and Hakim and Rasheed were writhing after
being shot. Then the police came there. The police took the injured
Hakeem, Rasheed and Safida to Darbhanga for treatment. Around
7-8 o’clock in the morning, information was received that both
Md. Raseed and Hakim died on the way.
22. PW-12 Dr. Sardanand Jha was posted as Civil
Assistant Surgeon on 30.06.2012 at Sadar Hospital, Madhubani.
He along with Dr. R.D. Chaudhary, M.O., Sadar Hospital,
Madhubani conducted the post mortem examination of a dead
body of a Muslim male aged about 60 years namely Md. Ali, son
of late Md. Bulbul of village Gangauli, P.S. Pandaul, District-
Madhubani. He found following ante mortem injuries:-
“(1) one circular wound 3/4” diameter with ragged
inverted margine on the upper part of the right side of chest in
the posterior auxiliary line-wound of entrance.
(2) lacerated wound 4″ x 1/2″ x 1/4″ on the dorsal
aspect of right hand with black burnt multiple spots on the
dossel aspect of hand-pump
(3) black burnt multiple spot on the lateral aspect
of right side of chest and lateral to nipple and lateral aspect of
right arm.
On dissection:- noted the following:-
Fractured of third rib of right side of chest with
laceration of right lung with blood and blood clot in thoracic
cavity and one bullet was embedded in the thoracic vertebra at
the level of diphram. Both chambers of heart empty, all the
internal vescera namely, lungs, liver, spleen and kidneys pale.
(4) Stomach containing digested food material. (5) Intestine
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34/50containing fecal matter and dashes. (6) Urinary bladder empty.
(7) brain and meninges pale, one bullet recovered from body
was handed over to Chowkidaar in a file level.
Time since death: within 24 hours.
Death in our opinion: was due to hemorrhage and
shock caused by firearm.”
23. PW-13 Dr. R.D. Chaudhary, on 30.06.2012, along
with Dr. S.N. Jha, M.O., Sadar Hospital, Madhubani conducted the
post mortem of the dead body of a Muslim male aged about 22
years named Md. Chhotu, son of late Md. Ali of village- Gangauli,
P.S. Pandaul, District-Madhubani, and found following ante
mortem injuries:-
“(1) One circular wound 3/4″ in diameter with
ragged inverted margin on the left side of the occipto parietal
region of the scalp-wound of entrance. (2)1/2” abrasion on the
left upper portion bracket of the abdomen on dissection.
Fracture of the left parietal and occipital bone of
the skull and laceration of the blood and meninges with blood
and blood clots in cavity. One bullet was lodged behind the
routerf of nazel bone and right bone. (2) heart both chambers
of the heart empty or internal vesras namely, lungs, liver,
spleen, kidneys pale, stomach containing digested food
materials. Intestine containing fecal material and gases.
Urinary bladder empty. One bullet recovered from body and
was handed over to the Chowkidar in label file.
Time since: within 24 hours.
Death in our opinion was due to hemorrhage and
shock caused by firearm. This PM Report has been prepared
by me which bears of my signature and also signature of Dr.
S.N. Jha, PM Report marked Ext.-2/1.”
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24. PW-14 Dr. Bedanand Jha was posted as a Teacher in
the Department of F.M.T., DMCH, Darbhanga on 30.06.2012. On
the same date, and in same capacity, he conducted the post mortem
examination of Md. Hakim, son of late Md. Ali of village-
Gangauli, P.S.-Pandaul, District- Madhubani at 01:00 p.m. The
dead body was brought and identified by Md. Mustakim Khan,
S.I., P.S.-Pandaul, District-Madhubani and the dead body of a
Muslim male aged about 35 years of average body build with
presence of rigor mortis all over the body. The following features
were noted:-
“Blood and blood clots were found over mouth
and both nostrils. One lacerated punctured wound with
inverted margins and collar of abrasion measuring 1/3″ in
diameter i.e. wound of entry was found in the epigristreum in
the median plane 1″ below the Xyphoid process. This wound
was communicating with a track going upwards and
backwards towards right below inferior angle of scapullain 7 th
intercoastal space. Here another lacerated punctured wound
with everted margine measuring 3/4” in diameter leading
outside the chest cavity i.e. wound of exits. The projectile had
passed through the diaphragm the medial aspect of right lung
and chest wall. The tissues in and around the track were
grossly lacerated and infiltrated with blood and blood clots.
The right lung was found collapsed with 500 ml fluid blood in
the right chest cavity. Both sides of heart were empty. Left
lung and all abdominal viscera i.e. liver, spleen and both
kidneys were found pale. Stomach and urinary bladder were
found empty. Brain and its meninges were found pale.
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36/50Opinion:- Above noted injuries were ante mortem
in nature and were caused by fire-arm firing bullet. Death was
due to hemorrhage and shock.
Time since death was within 8-12 hours from the
time of post mortem examination in this department.”
24.1. On the same date i.e. on 30.06.2012 at 02:00 p.m.,
conducted the post mortem examination of Md. Shamim, son of
late Md. Ali of village-Gangauli, P.S.-Pandaul, District-
Madhubani. The dead body was brought and identified by
Mustakim Khan, A.S.I., P.S.- Pandaul. The dead body was of a
Muslim male aged about 30 years of average body with presence
of rigor mortis all over the body. The following features were
noted:-
“Blood and blood clots were found over mouth
and both nostrils and left ear. One lacerated punctured wound
measuring 1/3″ diameter with inverted margines and collar of
abrasion i.e. wound of entry was found over right side of
temporal region of skull. This wound was found
communicating through a track across the cranial cavity from
right to left upto left parietal region, lacerating the meninges
and both hemisphere of brain, which were completely
disorganized. The tissue in and around the track were
completely lacerated and infiltrated with blood and blood clots
with multiple fractures of right temporal and left parietal
bones. In the middle of left parietal region, another lacerated
punctured wound of 1” diameter with everted margines i.e.
wound of exits was found. This exit wound was leading
outside the cranial cavity with oozing of blood and blood
clots. Both sides of heart were empty. Both lungs and all
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37/50abdominal viscera i.e. liver, spleen and both kidneys were
pale. Stomach and urinary bladder were empty.
Opinion:- Above noted injuries were ante mortem
in nature and were caused by fire-arm, firing bullet. Death was
due to laceration of brain.
Time since death was within 8-12 hours from the
time of post mortem examination in this department.”
25. PW-15 Kumar Brajesh is the Investigation Officer.
On 30.06.2012, he was posted as S.H.O. at Pandaul Police Station.
He was informed by the S.H.O. of Manigacchi Police Station
informed him on the phone that there was an attack on Md. Ali’s
house located in Village-Gangauli by firing bullets and exploding
bombs, as a result of which, some people died and some were
injured. When he reached Gangauli at 02:05 a.m., the S.H.O. of
Manigacchi Police Station was already present there. He recorded
the statement of the informant Md. Jasim and inspected the place
of occurrence. The boundary of the place of occurrence is the
roofed house of the informant-Md. Jasim. Near the northern edge
of the verandah, the dead body of Md. Ali was lying with its head
towards the west and its feet towards the east. There, Md. Ali’s
wife Safida Khatoon was also found injured who was sent for
treatment. To go inside from the verandah, there is a passage
which has a room on the left and a room on the right. There is a
door in the room on the left which is locked and the one room on
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the right does not have a door. No incident happened in these
rooms. He has further stated that the time of arrival of the
members of F.S.L. team and the name of the members are not
mentioned in the case diary. The members of the F.S.L. team had
recovered bomb remnants, bullet shells and other items from
various places. The seized items were sent to F.S.L., Patna on
14.09.2012 for examination. He recorded Safida’s statement on
02.07.2012, witness Sone Lal’s statement on 03.07.2012, Lakshmi
Choupal’s statement on 03.07.2012, witness Chirag Ali’s statement
on 16.08.2012, Sairul Khatoon’s statement on 16.08.2012, witness
Md. Jumarati’s statement on 16.08.2012 and Shakil’s statement on
23.09.2012. He has further stated that Chirag Ali had not said in
his statement before him that when he heard the sound of bullets
and bomb, he went to his door. The witness Rizwana said in her
statement that there was enmity between the house of the deceased
and the house of Shamshul, due to which, the conspiracy was
hatched but she did not told that there was a tussle between both
families because of which this incident occurred. In the fardbeyan,
the informant has not written that he went to sleep on the roof after
having dinner, but the said statement is mentioned in the re-
statement of the informant. In the fardbeyan, the informant-Jasim
did not mention that his elder brother Md. Hakim, Rashid and
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Nasim slept on the roof and his mother and father slept in the
verandah below. It is also not mentioned in the fardbeyan that he
got up from the roof at 12:00 o’clock and went to sleep in the
house in the clay-tiled house. The informant-Jasim has not stated,
in the fardbeyan, that at 02:00 in the night, he lost his sleep due to
the sound of bomb explosion and bullets coming from in front of
his terraced house. This informant has not mentioned this fact, in
his statement, that he hid in the bush and saw everyone in the flash
of solar light. He has further stated that the witness Safida has not
stated before him that she saw that Kalam shot her husband. He
has not made a rough sketch of the place of occurrence. He does
not know that Md. Ali is Chirag Ali’s brother. The reason for such
a big incident was the land dispute and shopkeeping dispute
between the parties. Md. Rehman, Md. Islam and Md. Karim had
no land related disputes with the deceased’s family. He had not
mentioned in the diary about the bushes lying in the east of the
informant’s clay-tiles house and whether there were any bushes to
the north of the informant’s clay-tiled house. It is not mentioned in
the diary about the bushes or forest lying in any part of the clay-
tiles house. The houses of the accused Md. Rehman, Suleman and
Misrul were searched, but no suspicious item was recovered from
their houses.
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26. PW-16 Dr. Rajeev Ranjan was posted as Associate
Professor and Head of Department in Radiology at D.M.C.H.,
Laheriasarai. He had no knowledge according to paper available in
the case record.
27. PW-17 Dr. Rajeev Ranjan was posted in Surgery
Department in D.M.C.H. on 30.06.2012. On that date, he
examined Sakina Khatoon, wife of Md. Ali aged about 55 years of
Gangauli, Madhubani and found following injuries:-
“(1) Lacerated wound in left lower leg over scene
tivior 5cm. X 2 cm. with blackening around.
(2) Tatooing with multiple small burns in left side
of the body, neck, chest, abdomen and hand.
(3) Very small lacerated wound in right arm
associated with tackoing investigation done;-
1. X-ray left lower let, AP and lateral view.
2. X-ray right upper arm AP and lateral view.
3. X-ray neck AP view.
According to radiologist of DMCH vide plate No.
5382 and 5404 four plates. No bony injunsing but sprintals
like shadow seen in all 3 X-rays.
Opinion:- Injury No. 1, 2 and 3 are simple caused
by firearm weapon. These injuries may be caused by sprintals
of bomb. The injury report has been prepared by me and bears
my signature and it has been marked Ext.-1.”
27.1. In his cross-examination, he has stated that the
injuries No. 1, 2, 3 may be caused by firearm by firing cartridges.
He prepared the injury report on 28.09.2012 while he examined
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
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the injured on 30.06.2012. On the basis of injury register, he
prepared this injury report, but injury register is not before him.
DISCUSSION AND FINDINGS:-
28. From the evidence led by prosecution, it would
emerge that Md. Jasim (PW-10) is the informant who lodged the
F.I.R. on 30th June, 2012 at 05:05 a.m. for the incident which took
place at 02:00 a.m. Thus, within three hours from the time of
incident, F.I.R. was immediately lodged in which the informant
gave name of 12 persons. Thus, in the present case, F.I.R. was
immediately lodged. It is pertinent to note that, in the incident in
question, father of the informant and three brothers of the
informant i.e. total 4 persons lost their lives and, during the night
hours, mother of the informant, i.e. PW-9, who is also an injured
witness, has seen the incident in question whereas other family
members have also seen the incident from outside the house. It
transpires from the record that prosecution had examined 17
witnesses out of which PW-1 and PW-2 have been declared
hostile. At this stage, we would like to examine the deposition
given by PW-9 who is the injured witness. PW-9 Safida Khatoon is
the mother of the informant. The said witness was sleeping with
her husband in the courtyard and her 3 sons were sleeping on the
roof of the house. On hearing the sound of bomb explosion, she
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woke up. At that time, she saw that Md. Hanif was standing near
her. He shot her husband upon which she screamed and thereafter
accused Kalam said “Kill her too”. Then, a man threw a bomb on
her which hit her leg. Thereafter, Kalam shot at her husband. After
that, Suleman, Jahangir, Misrul, Kalam, Rahman, Islam and Karim
went on the roof and after 10 minutes they came down from the
roof and went away. On her scream, all ran away towards west and
south direction. Thus, from the deposition of the said witness, it is
revealed that PW-9 sustained injury in the incident in question and
she is the eye-witness. At this stage, it is pertinent to note that PW-
12 Dr. Sardanand Jha conducted the post mortem examination of
the dead body of Md. Ali (husband of PW-9). The said Doctor
specifically opined that the deceased died due to hemorrhage and
shock caused by firearm injury. Thus, the medical evidence
supports the version given by PW-9.
29. PW-17 Doctor Rajeev Ranjan had examined PW-9
and issued an injury certificate. The said witness opined that three
injuries are simple but caused by firearm weapon and the said
injuries may be caused by splinters of bomb. Learned counsel
appearing for the concerned appellants/accused have though raised
contention that the injury sustained by the said witness was simple
in nature and PW-17 prepared the injury report on 28.09.2012 i.e.
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after a period of 3 months, the deposition given by the said witness
cannot be discarded on this ground. The fact remains that PW-9
sustained injury in the incident in question and her presence at the
place of incident during night hours at about 02:00 a.m. was
natural. There is no reason for the said witness to falsely implicate
and give the name of 10 persons who were present at the place. On
the contrary, the said witness did not give the name of the person
who threw the bomb on her which hit her leg. Thus, we are of the
view that the deposition given by the said witness was natural,
otherwise she could have implicated some person by giving his
name as the person who threw bomb on her. It is further revealed
from the deposition of the said witness that all the 10 persons
named by her were present and they all went at the roof and after
10 minutes all 10 persons came down from the roof and fled away
from the spot. When she screamed, the other persons, who
witnessed the occurrence from outside, also gathered and it was
found that 3 brothers of the informant (3 sons of PW-9) were
found dead on the roof. At this stage, it is also relevant to note that
the other prosecution witnesses have specifically deposed that PW-
9 sustained injuries and she was taken to D.M.C.H., Darbhanga.
Thus, with regard to the injury sustained by PW-9, there is ample
evidence which corroborate the version given by PW-9.
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30. At this stage, we would like to refer latest decision
rendered by the Hon’ble Supreme Court in the case of Neeraj
Sharma Vs. State of Chhattisgarh, reported in (2024) 3 SCC
125, wherein the Hon’ble Supreme Court has observed in Para-23
as under:-
“23. In Balu Sudam Khalde v. State of Maharashtra [Balu Sudam
Khalde v. State of Maharashtra, (2023) 13 SCC 365 : 2023 SCC OnLine SC
355] this Court summed up the principles which are to be kept in mind when
appreciating the evidence of an injured eyewitness. This Court held as follows
: (SCC para 26)
“26. When the evidence of an injured eyewitness is to be
appreciated, the under-noted legal principles enunciated by the
Courts are required to be kept in mind:
26.1. The presence of an injured eyewitness at the time and place
of the occurrence cannot be doubted unless there are material
contradictions in his deposition.
26.2. Unless, it is otherwise established by the evidence, it must
be believed that an injured witness would not allow the real culprits
to escape and falsely implicate the accused.
26.3.The evidence of injured witness has greater evidentiary value
and unless compelling reasons exist, their statements are not to be
discarded lightly.
26.4. The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or minor
contradictions.
26.5. If there be any exaggeration or immaterial embellishments
in the evidence of an injured witness, then such contradiction,
exaggeration or embellishment should be discarded from the evidence
of injured, but not the whole evidence.
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26.6. The broad substratum of the prosecution version must be
taken into consideration and discrepancies which normally creep due
to loss of memory with passage of time should be discarded.”
(emphasis supplied)”
31. From the aforesaid decision, it is revealed that the
Hon’ble Supreme Court has laid down principles which are to be
kept in mind while appreciating the evidence of an injured eye-
witness. From the aforesaid principle, it can be said that unless it is
otherwise established by the evidence, it must be believed that an
injured witness would not allow the real culprits to escape and
falsely implicate the accused. The evidence of injured witness has
greater evidentiary value and unless compelling reasons exist, their
statements are not to be discarded lightly. The evidence of such
witness cannot be doubted because of minor contradictions.
32. Keeping in view the aforesaid principle, if the
evidence of PW-9 (injured eye-witness) is examined, we are of the
view that PW-9 is trustworthy and her deposition cannot be
discarded and more particularly, when the same was corroborated
by the other prosecution witnesses including the medical evidence.
33. PW-10 (informant) has also deposed that he hid
himself in the bushes adjacent to the house and saw in the flash of
solar light that Md. Kalam, Md. Jahangir, Md. Misrul, local
choukidaar Md. Rahman, his son Md. Karim and Md. Hanif were
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
46/50armed with weapons. He identified all the accused persons. He,
therefore, immediately informed Manigachhi Police Station and
after 10 minutes, the policemen from the said Police Station came
at the place of occurrence and thereafter 10 minutes later,
policemen from Pandaul Police Station came at the said place.
34. PW-11 Md. Shakil Nadaf has also deposed, in
examination-in-chief, that he woke up at around 01:30-02:00 a.m.
after hearing the explosion of bomb and bullet. He came out of his
house and peeped in and saw that Md. Kalam was holding a pistol
in his hand and was saying to shoot Md. Jasim and shoot whoever
else is there. The said witness also gave name of the other accused
who were also carrying bombs in their hands. The said witness
further deposed that, after committing the crime, some accused ran
to the west and some went to the south direction. The said witness
reached at the house of Md. Ali i.e. place of occurrence and found
that 4 persons died in the incident and PW-9 sustained injuries.
35. We have also gone through the deposition given by
PW-4 Md. Jumarati, PW-5 Chirag Ali, PW-6 Sairul Khatoon, PW-
7 Gulshan Khatoon and PW-8 Rubana Khatoon. All the aforesaid
witnesses have also given name of the assailants whom they have
identified. Thus, the other witnesses have corroborated the version
given by PW-9 (injured eye-witness).
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36. The Doctors, who have conducted the post mortem
examination of the dead body of the deceased, also deposed that
all the 4 persons died because of firearm injuries. Thus, we are of
the view that the medical evidence also supports the version given
by PW-9 (injured eye-witness).
37. It has been contended by the learned counsels for the
appellants/accused that there are major contradictions,
inconsistencies and discrepancies in the deposition of the
prosecution witnesses. However, we are of the view that the said
contention is misconceived. Even if there are minor contradictions
and minor discrepancies in the deposition of the prosecution
witnesses, the case of the prosecution cannot be discarded simply
on the said ground. We are of the view that PW-9, who is the
injured eye-witness, has specifically named the accused persons
who were present at the place and the role played by the concerned
accused in committing the crime. When 4 persons died in the
incident in question, who are family members of PW-9, there was
no reason for PW-9 to falsely implicate her neighbours in the said
incident.
37.1. However, at this stage, we would like to examine
the case of the prosecution qua accused Md. Shamshul Nadaf, Md.
Firoz, Md. Islam and Majnu Nadaf. From the evidence of the
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48/50prosecution witnesses, as discussed hereinabove, it is revealed that
the prosecution witnesses have attributed the motive to the family
of Md. Shamshul Nadaf to kill Md. Ali. There is no evidence led
by the prosecution that the said accused have hatched the
conspiracy and the said accused were in contact with the other
accused who had committed crime at the place of incident. All the
aforesaid four accused have been convicted with the aid of Section
120B of I.P.C. However, prosecution has failed to produce any
evidence either in the form of telephonic conversation from the
said accused from the jail or from outside the jail with the other
co-accused and failed to produce any evidence that the said four
accused met the other co-accused before they had gone to jail in
connection with the dowry case registered by the daughter-in-law
of Md. Shamshul against the said accused and other three male
members of the family.
38. In view of the aforesaid discussion, we are of the
view that the prosecution has proved the case against the
appellants/accused Md. Suleman, Md. Jahangir @ Jahangir and
Md. Misrul in Criminal Appeal (DB) No. 1138 of 2016, Md. Abid
@ Sultan @ Abid in Criminal Appeal (DB) No. 1137 of 2016, Md.
Rahman @ Rahman in Criminal Appeal (DB) No. 64 of 2017, Md.
Karim @ Karim and Md. Islam @ Islam in Criminal Appeal (DB)
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
49/50No. 67 of 2017 and Md. Hanif @ Md. Hanif Mansoori @ Hanif
Mansoori in Criminal Appeal (DB) No. 1220 of 2016 beyond
reasonable doubt and, therefore, no error has been committed by
the Trial Court while passing the impugned judgment and order
against them.
39. Further, in view of the aforesaid discussion, we are
of the view that the prosecution has failed to prove the case against
appellants Md. Firoz and Md. Islam in Criminal Appeal (DB) No.
1076 of 2016 and appellant Majnu Nadaf @ Majlum Nadaf in
Criminal Appeal (DB) No. 445 of 2017. Thus, the impugned
judgment and order of conviction and sentence are required to be
quashed and set aside qua the aforesaid appellants.
CONCLUSION:-
40. Accordingly, Criminal Appeal (DB) No. 1137 of
2016, Criminal Appeal (DB) No. 1138 of 2016, Criminal Appeal
(DB) No. 64 of 2017, Criminal Appeal (DB) No. 67 of 2017 and
Criminal Appeal (DB) No. 1220 of 2016 stand dismissed.
41. Further, the judgment of conviction dated
16.09.2016 and order of sentence dated 20.09.2016 passed by
learned Sessions Judge, Madhubani in Session Trial No. 90/2013
(2847/2013 C.F.), Session Trial No. 155/2013 (1446/2013 C.F.),
Session Trial No. 1/2014 (4276/2014 C.F.) arising out of Pandaul
Patna High Court CR. APP (DB) No.1138 of 2016 dt.30-08-2024
50/50P.S. Case No. 149/2022 (G.R. No. 1890/2012) are hereby quashed
and set aside qua appellant Majnu Nadaf @ Majlum Nadaf (in
Criminal Appeal (DB) No. 445 of 2017) and appellants Md. Firoz
and Md. Islam (in Criminal Appeal (DB) No. 1076 of 2016). The
aforementioned 3 appellants are acquitted of the charges levelled
against them by the learned Trial Court. They are in custody. They
are directed to be released from jail custody forthwith, if their
custody is not required in any other case.
42. Accordingly, Criminal Appeal (DB) No. 445 of 2017
and Criminal Appeal (DB) No. 1076 of 2016 are allowed.
43. Criminal Appeal (DB) No. 1076 of 2016 stands
abated qua Md. Shamshul Nadaf.
(Vipul M. Pancholi, J)
Ramesh Chand Malviya, J: I agree
Sachin/- (Ramesh Chand Malviya, J)
AFR/NAFR A.F.R.
CAV DATE 06.08.2024
Uploading Date 30.08.2024
Transmission Date 30.08.2024