Jharkhand High Court
Kalim Mian S/O Ibrahim Mian Resident Of ... vs The State Of Bihar on 19 February, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2026:JHHC:5101-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal No. (DB) 223 of 1997 (R)
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(Against the judgment of conviction and order of sentence
dated 21.04.1997, passed by learned Sessions Judge, Deoghar
in Sessions Trial No.188 of 1994/5 of 1995)
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Kalim Mian S/o Ibrahim Mian resident of village Fulkari,
P.S. Madhupur, District Deoghar.
.... Appellant
Versus
The State of Bihar ..... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellant : Mr. Sumiran Srivastava, Amicus Curiae
For the State : Mr. Vineet Kumar Vashistha, Spl.P.P
.....
C.A.V. on 09/02/2026 Pronounced on 19/02/2026
Per Sujit Narayan Prasad, J.:
Prayer:
1. The instant appeal has been filed under Section 374 (2) of the Code of Criminal Procedure against judgment of conviction and order of sentence dated 21.04.1997, passed by learned Sessions Judge, Deoghar in Sessions Trial No.188 of 1994/ 5 of 1995, by which the appellant has been convicted under section 302/34 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/.
The appellant has been further convicted under Section 27 of the Arms Act and for that he has been sentenced to undergo RI for three years. Both the sentences are directed to run concurrently.
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2. Before, proceeding with the case, it is pertinent to note that by the impugned judgment, two accused persons namely Ibrahim Mian and Kalim Mian (appellant herein) were convicted and sentenced as aforesaid. Accused Ibrahim Mian had filed Cr. Appeal (DB) No. 174 of 1997(P), which was abated by order dated 21.12.2023 of this Court, as appellant Ibrahim Mian had died during pendency of the said appeal.
Prosecution Case:
3. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case.
4. The prosecution case, in brief, as per the fardbeyan of the informant Sahood Mian (P.W.18) dated 26.061994 is that on 25.6.1994, the informant Sahood Mian along with his father Andu Mian (deceased) had gone to the house of his brother-in-law Saleem Mian situated in village Panhaiyatola to attend Milad.
5. On 26.06.94 at about 7.30 A.M., in the morning, they left the village Panhaiyakola for their village Fulkati, on their respective bi-cycles. At about 9.00 A.M. as soon as both of them reached to village Kathghari near boundary of Huro Mian, all of a sudden accused persons namely Kalim Mian (appellant herein), Ibrahim Mian, Ramjan 2 Mian, Ashin Mian, Matha Mian and Chirkut Mian, variously armed, hiding behind the boundary came out and surrounded them.
6. Accused Ibrahim Mian fired at the victim Andu Mian from his pistol, which caused injury on his right hand and accused Kalim Mian also fired shot from his pistol at the chest of the victim and the victim Andu Mian immediately fell down at the spot. The informant raised halla, upon which several persons from nearby including Ansari Mian (P.W.12), Saleem Mian (P.W.1), Anjul Mian (P.W.2), Sharif Mian (P.W.7) and Rahamtulla Mian of village Fulkari rushed to the spot and saw Kalim Mian firing. Thereafter, seeing them, accused persons fled away.
7. It has been alleged that the victim had old enmity with the accused persons and therefore they committed murder. The informant with the help of the villagers brought his injured father to Madhupur Hospital to Dr. B.N. Das (P.W.20), from where his father was referred to Giridih Hospital and when his injured father was being taken to Giridih Hospital, he died at Madhupur Bazar. Informant has further stated that due to prior enmity between the parties, accused persons had killed his father.
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8. On the basis of the fardbeyan FIR being Madhpur P.S. case no. 108/1994 dated 26.06.1994 was registered under against the accused persons Kalim Mian (appellant herein), Ibrahim Mian, Ramjan Mian, Ashin Mian, Matha Mian and Chirkut Mian, u/s 302/34 of IPC and 27 Arms Act.
9. After investigation police filed charge-sheet against the accused persons and cognizance of the offence was taken and the case was committed to the court of sessions. Charges u/s 302/34 was framed against the accused persons Kalim Mian (appellant herein), Ibrahim Mian, Ramjan Mian, Ashin Mian, Matha Mian and Chirkut Mian and separate charge was framed against the accused persons Kalim Mian (appellant herein) and Ibrahim Mian.
10. The appellant pleaded not guilty and the prime defence of the appellant is complete denial of the accusation levelled against him as disclosed in the F.I.R. and has been falsely implicated in this case due to enmity and at the time of framing of charge the appellant pleaded innocence and claimed to be put on trial.
11. The prosecution in order to bring home charges examined altogether 21 witnesses out of whom P.W.18 Sahood Mian is the informant of the case and son of the deceased; P.W.1 Saleem Mian; P.W. 2 Anjur Mian; P.W.4 4 Mahud Ansari, is another son of the deceased; P.W. 6 Md. Azad, is the nephew of the deceased; P.W. 7 Sharif Mian; P.7.9 Md. Salim; P.W.10 Majoor Mian; P.W.11 Nasim Mian; P.W.12 Ansari Mian; P.W.13 Kurban Mian, is the cousin brother of the deceased; P.W.-15 Reyasat Ansari and P.W.17 Mahmud Ansari .
12. P.W.3 Karmui Ansari, P.W.8 Amaralli Mian, P.W.14 Mujammil Noorani, were tendered.
13. P.W. 9-Md. Salim, P.W. 10-Manjur Mian and P.W.13 Kurban Mian are hearsay witnesses.
14. P.W. 16 Dr.Anand kumar Jain, had conducted postmortem examination on the dead body of the deceased; P.W.20 Dr. Bishwanath Das, had examined the deceased and P.W.19 Vishnu Dayal Singh, is the investigating officer of the case.
15. P.W. 5 Ballabh Deo and P.W. 21-Ashok Kumar Mishra, both are an Advocate clerk and formal witnesses. P.W.-5 has identified the signature of officer-in-charge Vinod Kumar Pandey, on the formal FIR and fardbeyan, which were marked as Ext.-1and Ext.-1/1 respectively. P.W. 21 has proved the Post Mortem Report Application which was in the handwriting and signature of V.D. Singh, the then Inspector Madhupur Police Station, which was marked as Ext.-5.
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16. On behalf of defence, two witnesses were examined D.W.-1 Md. Tahir Ansari and D.W.-2-Keshav Singh.
17. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons and found the charges levelled against the appellant under Section 302 IPC as also 27 of the Arms Act proved beyond all reasonable doubts. Accordingly, the appellant has been found guilty and convicted, as stated above, which is the subject matter of instant appeal.
Submission on behalf of appellants:
18. Mr. Sumiran Srivastava, learned counsel appearing for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds:
I. Prosecution has miserably failed in proving the charge leveled against the appellant and learned trial court has committed error of law in evaluating and analyzing the evidence in coming to the conclusion.
II. Submission has been made since the appellant has falsely been implicated in this case because his father Ibrahim Mian has filed criminal cases against the victim, informant and others, some of them are allegedly the eye-witness to the 6 occurrence, for murder of his brother namely Kamruddin Mian and Islam Mian and the appellant is witness in both the cases.
III. Submission has been made that appellant was not in the village on the alleged date of occurrence, rather, he was in his sasural at Tabhaghat, which fact has been supported by the defence witness.
IV. Further, the witnesses, P.W. 2; P.W. 7; P.W. 12 and P.W. 18 have specifically stated that the deceased was running in front of the appellant, thus in that situation the medical evidence is contrary to the deposition of the prosecution witnesses because as per post-mortem report of the deceased the shot made by the firearm on the left side of the chest of the deceased.
V. The P.W. 1, P.W. 2 and P.W. 4 are accused to the earlier occurrence wherein brothers of the co- accused Ibrahim were killed and therefore the false allegation cannot be ruled out.
VI. It has further been submitted that other witnesses are the relative of the informant, hence they are related and interested witness and therefore the testimony of the said witnesses cannot be relied upon.7
VII. It has been pointed out that according to Post Mortem Report, time elapsed since death was within 48 hours whereas according to FIR, it should be 24 hours, which is vital discrepancies but the learned trial court while passing the impugned judgment of conviction and order of sentence has not taken into consideration the aforesaid fact.
VIII. Furthermore, the police had not seized any cloth, live or dead bullet, cycle, blood and soil from the place of occurrence. Even the investigating officer has not examined any neighbouring witness from the place of occurrence, where the alleged shot from fire arm took place.
IX. Learned counsel for the appellant has further submitted that the deceased was a veteran criminal of the locality, as such it cannot be ruled out that he was murdered somewhere by someone and the informant merely on suspicion and due to grudge has falsely implicated the appellant.
X. Further submission has been made that the trial court has come to the conclusion that the allegation regarding surrounding or taking part in any manner has not been proved against four 8 other accused persons namely Ramjan Mian, Ashin Mian, Matha Mian and Chirkut Mian, therefore the whole prosecution story becomes doubtful which cannot be relied upon.
XI. Further submission has been made that there are major contradiction in the testimonies of witnesses, which has not been taken care by the learned Trial Court in the impugned judgment. XII. Learned counsel for the appellant, in the backdrop of aforesaid grounds, has submitted that the judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt.
Submission of the learned APP for the State:
19. Per Contra, learned Special Public Prosecutor appearing on behalf of State has defended the impugned judgment of conviction and order of sentence taking the ground that the impugned judgment has been passed based upon the testimony of witnesses who have supported the prosecution version.
20. Submission has been made that there is clinching evidence to show that appellant had pistol in his hand and had also fired shot upon the victim, which shows the 9 intention on the part of the accused to commit murder of the deceased.
21. Further submission has been made that there are several eye witnesses to the occurrence who have consistently supported the case of the prosecution. The witnesses were cross-examined but nothing contrary could be elicited from their mouth so as to disbelieve their version or the case of the prosecution. The ocular evidence of the eye witnesses has been corroborated by the medical evidence as deposed by the doctor.
22. Further submission has been made that even if there are minor discrepancies in the testimonies of the witnesses that cannot wash away the case of the prosecution.
23. Learned State counsel, based upon the aforesaid ground, has submitted that the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt and as such the impugned judgment requires no interference by this Court.
Analysis
24. We have heard learned counsel for the parties, perused the documents available on record and the testimony of witnesses as also the finding recorded by learned trial Court in the impugned order. 10
25. This Court, on the basis of aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of impugned judgment of conviction and order of sentence.
26. Apart from the informant P.W.-18 Sahood Mian, who is the son of the deceased Andu Mian, prosecution has projected four other witnesses as eye witnesses to the case, they are P.W. 1-Saleem Mian, P.W. 2-Anjur Mian; P.W. 7 Sharif Mian and P.W. 12 Ansari Mian.
27. Hence, firstly it would be fruitful to see the evidence of these alleged witnesses eye witnesses- informant P.W.- 18 Sahood Mian, P.W. 1-Saleem Mian, P.W. 2-Anjur Mian; P.W. 7 Sharif Mian and P.W. 12 Ansari Mian.
28. P.W.-18 Sahood Mian, is the informant of the case and the son of the deceased. He has stated in his evidence that on 25.06.1994, he had gone to in-law's house of his sister, at Panhaiyakola, Madhupur Bazar, along with his father. On 26.06.1994 in the morning at 7.15, he was returning to Fulkati, along with his father on bicycle. When they reached at Katghari mouza near the boundary-wall of Huro Mian, he found accused persons Ibrahim, Kalim Ramjan, Aasin, Matha and Chirkut coming out. Ibrahim and Kalim were armed with pistol and Ramjan and Aasin were armed with bhala and Matha and Chirkut Mian were armed with lathi. 11
29. Informant further stated that all the accused persons surrounded them and they fled away leaving the bicycle. Informant further deposed that Ibrahim fired gunshot which hit the right hand of his father and when his father fled away from there, then Kalim Mian surrounded his father and fired gun shot on the left side chest of his father due to which after moving 4-5 steps he fell down. On halla Ansari Mian (P.W.-12), Ajul (P.W.-2), Salim (P.W.-1) Sharif (P.W.-7) and Rahamtulla reached at the place of occurrence and seeing his father fallen down, the accused persons fled away. His father was taken to Madhupur D.C. Hospital on vehicle, but seeing the condition of his father doctor referred his father to Giridih Hospital, but, on the way at Hazi Gali, his father died. Daroga jee had taken his fardbeyan on which he had signed. Informant has identified his signature on the fardbeyan, which was marked as Ext.-1/2. Informant further stated that two brothers of Ibrahim was murdered and Ibrahim had doubt that informants father had killed his brothers.
30. In his cross-examination, informant stated he had firstly seen the accused persons near the boundary, from a of distance of 6-7 gaj and seeing the accused persons, out of fear, he fled away leaving the cycle towards north. He and his father were running equally and while 12 running he ran towards east and his father was running towards west. At paragraph- 12 of his evidence informant deposed that when accused persons fled away then, he went to his father. First of all, Sharif (P.W.-12), then Ajul(P.W.-2), Ansari, Rahmutul and Salim reached there.
31. P.W. 1-Saleem Mian, has stated in his evidence that the incident is of 26.06.1994. He was plaguing his farm in Fulkati Mauza. Then he heard sound of bullet firing coming from east direction from village Kathghari. He rushed and it was about 9.00 a.m. morning. He found Hasim Mian, Lakhan Mian, Matha Mian, Chirkut mian, Ibrahim Mian, Kalim Mian (appellant herein) had surrounded Andu Mian and Sahood mian. Andu Main any how managed to escape, but Kalim Mian surrounded him and shot on his chest and after gunshot Andu fell down and accused persons fled away. They carried Andu Mian to the village. Pistol shot was done by Kalim Mian. He further deposed that Anjul Mian, Ansari Mian; Rahmattulah Mian, Fariq Mian came and saw the incidence. Andu Mian had told that first gun shot was made by Ibrahim Mian and second shot was made by Kalim Mian [appellant herein].
32. In his cross-examination, P.W.-1 stated that the distance between Katghati and Fulkati is one mile. He further deposed that for the first time, he saw Andu Mian 13 from the distance of 100 gaj and he was running towards west. In running condition, Andu got gun shot. He further deposed that accused persons were trying to surround Andu and after getting gunshot injury he fell down in 7-8 steps. Kathgari is at 400-500 gaj from the place of occurrence. He further stated that after the incidence, he saw Kalim [appellant] was fleeing towards east. He further stated that four persons hanging in their hand took the injured and there was blood stain in their cloth.
33. In the cross-examination, he has further deposed that he is witness in a murder case, which has been lodged by the accused Ibrahim, which was lodged before this case. He further deposed that he had stated before the police that Andu had told him that first gun shot was fired by Ibrahim Mian.
34. P.W.-2 Ajur Mian, has stated in his evidence that on 26.06.1994 at about 7.00 a.m. in the morning, he was ploughing his farm with his brother, then, he heard the sound of gun-shot coming from east side. He along with his brother rushed and saw Andu Mian was fleeing away from near the boundary wall and Sahur was also along with him. P.W.-2 further stated that from front accused Kalim and from the north the five accused persons, namely, Ibrahim Mian, Ramjan Mian, Aasin Mian, Matha 14 Mian and Chirkut Mian had surrounded. Kalim and Ibrahim were armed with pistol, Ramjan and Aasin were armed with bhala and remaning accused persons were armed with lathi. Kalim Mian fired gun shot over Andu Mian which hit his chest whereupon he fell down after walking two-four steps. The accused persons fled away. Therafter, Andu Mian was taken to village at Fulkati and he was kept near graveyard and he was conscious at that time. Mubin Mian, Manjur Mian, Kamruj Mian came there then Andu Mian told them that first gun shot was fired by Ibrahim Mian, which hit him on his thumb and second gun shot was fired by Kalim Mian [appellant].
35. P.W.-2 in his cross-examination, stated that his leg is broken and he cannot sit by folding his legs. He gave description of the land on which he was ploughing. P.W.- 2 further deposed that he is accused in a case of murder of brother of accused Ibrahim Mian, namely Rustam.
36. P.W. 7. -Sharif Mian, has stated in his evidence that at the time of incidence when, he was in his farm, he heard the sound of gunshot coming from side of Katghari and he heard shout of Sahur. When he rushed 100 gaj form his farm he, found that Ibrahim, Kalim, Chirkut, Aasin, Matha, had surrounded Andu and Sahud. Kalim and Ibrahim were armed with pistol, Ramzan and Aasin were armed with bhala and remaining two were armed with 15 lathi. Andu Mian fled towards west and Sahud fled towards north. He further deposed that Kalim shot on the chest of Andu Mian due to which he fell down after moving 5-6 steps and at that place there was plenty of blood. Thereafter, Accused fled away towards Katghari.
37. P.W.-7 in his cross-examination, stated that he knows Hanif, the father of Kalu. He further deposed that Kallu is accused in murder case of Kamruddin, the brother of Ibrahim and he is an accused in case of murder of Islam, Ibrahim's second brother. He further stated that at the time of shooting of second bullet, he was at the distance of 100 gaj from Sahood and Andu was at the distance of 125 gaj from him and Andu was running and five persons were running behind Andu. At paragraph-8, P.W.-7 stated that in the running condition, Andu received gun shot. He further stated that the persons who were chasing Andu had not assaulted Andu. Andu received bullet injury at the distance of 3-4 gaj. After receiving gunshot Andu moved towards west and fall down and where Andu fell down, from there Kalim was at the distance of 20-30 gaj towards east.
38. P.W. 12, Ansari Mian, has stated in his evidence that on the time of occurrence, he was ploughing the farm of his cousin sister. He heard sound of bullet as also halla of Sahood coming from Katghari. When he reached near 16 the boundary wall of Huri Mian, at Kathghari, he found that Andu and Sahood were fleeing. Accused Kalim, by surrounding Andu from the front, shot on Andu. Ramjan, Aasin, Matha, Chirkut and Ibrahim were also chasing Andu. Aasin and Ramjan were armed with bhala, Chirkut and Matha were armed with lathi and Ibrahim and Kalim were armed with pistol. After receiving gun shot, Andu main fell down after moving 2-4 steps. Accused persons fled towards Katghari.
39. Now this court is proceeding to discuss the evidences of remaining other witnesses.
40. P.W.-4 Mahud Ansari, is another son of the deceased Andu Mian. He has stated in his evidence that the incidence is of 06.06.1997 at about 9.00 A.M., in the morning and at that time he was in his house. He came to know that his father had sustained gunshot injury. When he went near primary school, people had already carried his father there. He saw his father in an injured condition with an injury on his chest and right hand. On enquiry, his father told him that accused persons Ibrahim and Kalim had shot him. In order to take transport, he went to Madhupur by bicycle and he went to Singho and there he met Risayat Ansari (P.W.-15) to whom he informed about the incidence, then, he told 17 that Sahood (informant) and his father(deceased) had left the place 1-1/2 hours ago.
41. In cross-examination, P.W.4 admitted that in the murder case of Kamruddin, he and also his father was accused.
42. P.W. 6-Md. Aazad, is the nephew of the deceased. has stated in his evidence that on the day of incidence at about 9 A.M., in the morning he was bathing in his house at the well, when his aunty informed him that there was halla in the village. Then, he went to the graveyard, there he saw Andu Mian in an injured condition. Andu Mian had sustained gunshot injury on the left chest and on right thumb. Andu said that Ibrahim and Kalim had shot him.
43. P.W.-6 in his cross-examination stated that Andu (deceased) was accused in murder of Islam and Kamrudin. P. W-6 admitted that Andu Mian(deceased) is his uncle.
44. P.W.-15 Riyasat Ansari is father-in-law of the informant and samdhi of the Andu Mian(deceased). He has stated in his evidence that incidence took place two years two month ago, in the sixth month (June). It was Sunday and about 8P.M., in the night, he was at his home, when his samdhi Andu Mian and his son-in-law Sahood Mian, came to his house. P.W.-15 further stated 18 that both were returning to their home at Fulkati from Panhayakola, Madhpur. They stayed at his house for 5- 10 minutes and then, left for Fulkati from by bicycle.
45. P.W.-15 in his cross-examination stated that Panhayakola is at a distance of 1.75 miles from Singho and distance of Fulkati from his village (Singho) is 1.25 miles.
46. P.W. 16 is Dr. Anand Kumar Jain, who did post mortem upon the dead body of Andu Miyan on 27.06.94 at 9.30 AM and found following ante-mortem injuries on his body :
I. Lacerated wound 2" long running obliquely from dorsal surface of matacar po-phatangeal joint of right thumb to with phalaugeal joint on palmar surface width 1" margin ragged with blacking.
Proximal phalanx, communuted fracture with laceration of sub tissues.
II. Lacerated wound 3/4" x 1/2" about 2.5" below the left nipple marginal blackened, ragged and waisted.
Tatto marks present around 4" area from the wound. This the wound of entry.
III. Lacerated wound 1" x 1/2" evested margins situated on left side of back of chest 6" below left scapula and about 3" to the left of mid line. This is the wound of exit.19
47. Doctor stated that time elapsed since death was within 48 hours and opined that death was caused due to hemorrhage and shock as the result of above noted injuries caused by fire arm may be a country made pistol.Doctor proved the postmortem report, which marked as Ext.-2.
48. Doctor in his cross-examination stated that injury no. 1 alone cannot cause death. A man having such injuries may become unconscious. In case of such injuries instantaneous death may be caused. On an average rigor mortis remains present up-to 48 hrs.
49. P.W. 19-Vishnu Dayal Singh, is the investigating officer of the case. He has stated in his evidence that on 26.06.1994, he was posted at Madhupur Police Station as Sub-Inspector of Police. Fardbeyan of Sahood Miyan, was written by Mushi Braj Kishore Upadhyay and bears the signature of Officer-in-charge Awadh Bihari Pandey. Investigating officer had proved the fardbeyan which was marked as Ext.-3.
50. Investigating officer further stated that he inspected the place of occurrence on 26.06.1994 at 13.30 hours. The incidence occurred near village Katghari toward 440 gaj of boundary wall of Huro Mian. He visited the place where the first and second gunshot allegedly was made upon the deceased and found the blood stain. Kathhgari 20 village is at a distance of 500 gaj east from the place of occurrence.
51. Investigating officer in his cross-examination stated that from the place of occurrence no cartridge was recovered. He neither seized blood-soaked earth nor blood stained cloth from the place of occurrence. He did not take statement of any person of village except Nand Kishore.
52. P.W.-20 Dr. Bishwanath Das, has stated in his evidence that on 26.06.1994, he was posted as in-charge Medical Officer D.C. Hospital Madhupur. On that day he had Andu Miyan was brought with complain of bullet injury on his chest. He administered first aid to the injured and referred him to Giridih Hospital. The outdoor ticket is in his pen and signature, which has been marked as Ext.-4. In his cross-examination, he deposed that aforesaid hospital is at a distance of one yard and with the injured no requisition, from the police was produced.
53. On behalf of defence, D.W. 1-Md. Tahir Ansari, was examined, who deposed that on 26.06.1994, at 9A.M., Kalim Mian along with his wife and children was in Tamaghat and he had seen them.
54. The prosecution has led evidences to establish that the alleged murder was committed by the appellant-Kalim 21 Mian and his Ibrahim Mian (since dead), by gunshot injury on Andu Mian(deceased) thumb and chest, which has been supported by the several eye witnesses, had rushed at the place of occurrence, on hearing sound of firing and is also supported by medical evidence.
55. While the appellant, in his defence, has taken the ground that the interested persons concocted the story of murder and the appellant has been implicated in this case due to the fact that the father of the appellant, Ibrahim Mian had filed criminal case against the victim, informant and other persons, some of which are allegedly the witnesses in the case at hand. Learned counsel for the appellant has further submitted that the deceased was a veteran criminal of the locality, as such it cannot be ruled out he was murdered somewhere by someone by the informant due to grudge has falsely implicated the appellant.
56. Besides ground has been taken that allegedly though the incidence is said to be occurred in broad day light at 9 A.M., in the morning, but no independent witness has been examined rather the witnesses who have alleged to be the eye witnesses are the interested witnesses and are the accused in a murder case instituted by Ibrahim Mian, the father of the appellant, as such due to enmity, the appellant has been falsely implicated in this case. 22
57. Furthermore, much emphasis has been laid down upon the fact that the doctor in the post mortem has specifically stated that time elapsed since death is 48 hours on 27.06.1994 at 9.30 a.m. whereas allegedly, the death is said to be occurred, as per the case of prosecution in the way going to Giridih Hospital on 27.06.1996 at about 11.00 A.M in the morning.
58. The appellant has also taken the ground that the police had not seized any cloth, live or dead cartridge, cycle, blood soaked soil from the place of occurrence. Even the I.O. has not examined any neighbouring witness from the place of occurrence.
59. Further submission has been made that the trial court has come to the conclusion that the allegation regarding surrounding or taking part in any manner has not been proved against the other four accused persons, therefore the whole prosecution story becomes doubtful, which cannot be relied upon.
60. This Court, on the basis of aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of impugned judgment of conviction and order of sentence by formulating following questions to be answered by this Court:
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I. Whether the discrepancies as shown in the evidence of the informant P.W.-18 and P.W.-15, in context to time of alleged occurrence, are material discrepancies and affect the case of the prosecution substantially?
II. Whether the testimony of the related witnesses is reliable, upon which conviction of the appellant can be sustained?
III. Whether on the basis of the evidence led by the prosecution, the P.W. 1-Saleem Mian, P.W. 2-Anjur Mian, P.W. 7 Sharif Mian and P.W. 12 Ansari Mian can be treated as an eye witness to the alleged incidence of bullet shot on the deceased Andu Mian(deceased) ?
Re: Issue No.I
61. Before proceeding to the first issue as to discrepancies in the evidence of the informant P.W.-18 and P.W.-15, in context to the time of occurrence, it would be profitable to refer judgments of Hon'ble Apex Court on the issue of discrepancy of witnesses.
62. Hon'ble Apex Court in case of Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 and Bhargavan v. State of Kerala, (2004) 12 SCC 414, has laid down that material discrepancies are those which are not normal, and not expected of a normal person. Courts 24 have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Paragraph-15 of judgment of Gangadhar Behera v. State of Orissa, (supra), is quoted herein below-
63. To the same effect is the decision in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] . Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a 25 mandatory rule of evidence". (See Nisar Ali v. State of U.P. [AIR 1957 SC 366 : 1957 Cri LJ 550] ) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 : 1956 Cri LJ 827] ). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] and Ugar Ahir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to 26 discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. [(1952) 2 SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ 230] and Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] .) As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593 : AIR 1981 SC 1390] normal discrepancies in evidence are those which 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 occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar [(2002) 6 SCC 81 : 2002 SCC (Cri) 1220 : JT (2002) 4 SC 186] . Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned.
(emphasis supplied)
64. Again, in case of Mohd. Jabbar Ali v. State of Assam, (2023) 19 SCC 672, Hon'ble Apex court reiterated the same, as to discrepancy of witnesses and laid down that material discrepancies corrode the credibility of the prosecution's case while insignificant discrepancies do not do so. Paragraph-53 of the judgment is quoted herein below-
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"53. Further as already stated above, all the witnesses have given contradictory versions as to who gave the fatal blow to deceased Ekkabar Ali and the same amounts to material contradictions. It is reiterated that the testimony of PW 6 is inconsistent with the testimonies of PW 1, PW 2 and PW 5. This Court in State of Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2 SCC 752 : 1981 SCC (Cri) 593] , distinguished between the normal discrepancies and material discrepancies. This Court held that the Courts have to label as to which category a discrepancy can be categorised. The material discrepancies corrode the credibility of the prosecution's case while insignificant discrepancies do not do so."
(emphasis suppled)
65. Hence, based on the above proposition of law, as to discrepancy of material witness, this court is now proceeding to examine the evidence of P.W.-18 and P.W.-
15.
66. Informant P.W.-18 Sahood Mian, is the son of the Andu Mian (deceased) and P.W.-15 Riyasat Ansari is father-in-law of the informant and samdhi of the Andu Mian (deceased).
67. In his examination-in-chief, informant P.W.-18 Sahood Mian had specifically stated that on 25.6.1994, he along with his father Andu Mian(deceased) had gone to the in- law's house of his sister, situated in village Panhaiyatola to attend Milad. On 26.06.94 at about 7.30 A.M., in the morning, they left for their village to Fulkati on bi-cycles and on the way, they had gone to the Sigho basti, at the 28 house of P.W.-15 Riyasat Ansari, where informant's in- law's house is situated and they had stayed at the house of P.W.-15 Riyasat Ansari, for some time and thereafter, he proceeded along with his father for their house (i.e. Fulkati) by bicycle. Relevant paragraph of informant's examination-in chief is quoted herein below-
"1 25.06.94 बह ब घ 26.06.94 बह ब ह ब ह ह ह ह घ घ घ ह ह ह , , , , ह औ औ औ "
68. Hence, from the evidence of the informant P.W.-18, it appears that after attending the function at in-law's house of his sister, situated in village Panhaiyatola, informant and his father did not return their home situated at Fulkati, rather, on the next day i.e. on 26.06.94, at about 7.30 A.M., in the morning, they left the village Panhaiyakola for their village Fulkati.
69. But, on going to the evidence of P.W.-15, who is father-in-law of the informant and samdhi of the Andu 29 Mian (deceased), this court finds that P.W.-15, had specifically stated in his examination-in-chief that on Sunday at about 8P.M. in the night, he was at his home, when his samdhi Andu Mian and his son-in-law Sahood Mian, came to his house. P.W.-15 also stated that they were returning to their home at Fulkati from Panhayakola, Madhpur and they had stayed at his house for 5-10 minutes and then, left for Fulkati by bicycle. Relevant paragraph of P.W.-15, examination-in chief is quoted herein below-
"1 ह ह ह घ ह औ 8ब घ औ घ ह घ ह 5-10 घ औ ह "
70. Hence, there is vital discrepancy in statement of informant P.W.-18, who had stated in his evidence that on 26.06.94, at about 7.30 A.M., in the morning, he along with his father had left for their village Fulkati, but, contrary to this informant's father-in-law P.W.-15 Riyasat Ansari, had specifically deposed in his examination-in- chief that on Sunday at about 8P.M. in the night, his samdhi Andu Mian and his son-in-law Sahood Mian(P.W.-18), had come to his house and after 5-10 minutes, they had left for Fulkati by bicycle. 30
71. So, from the evidence of P.W.-15 Riyasat Ansari, it appears that Andu Mian(deceased) along with the informant P.W.-18 Sahood Mian had gone to Riyasat's house situated at Singho basti, in the night of 26.06.1994 (Sunday) and thereafter both had left for their home for Fulkati.
72. But, informant P.W.-18 in his evidence as well in his fardbeyan had stated that informant along with his father Andu Mian(deceased), had left for their home to Fulkaati from Panhaiyakola on 26.06.1994 at 7.15 A.M. in the morning, and on the way, they had gone to the house of P.W.-15 Riyasat Mian situated at Singho basti.
73. Hence, there is vital discrepancy and contradiction in evidence of the informant P.W.-18, who had stated in his evidence that they had left for their house to Fulkati, in the on 26.06.1994 at 7.15 AM in the morning but the said fact is contrary to the testimony of P.W.15 wherein in his examination-in-chief P.W.15 had stated that Andu Mian(deceased) along with the informant P.W.-18 Sahood Mian had come to his house situated at Singho basti, in the night of 26.06.1994 (Sunday), therefore this discrepancy in the testimony of the informant is not minor discrepancy and contradiction, rather it is material discrepancy which eroded the base of the prosecution case.
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74. Further, informant in his fardbeyan had stated that gunshot was fired by the accused/appellant Kalim Mian on his father at about 9.00 A.M. in the morning of 26.06.1994 as soon as they had reached at the place of occurrence at village Kathghari but, P.W.15 in his evidence had sated that the informant and Andu Mian(deceased) had left for their home for village Fulkati from Village Singho at about 8P.M-in the night on Sunday therefore, the alleged occurrence of shot fired upon the deceased by the present appellant in the morning at 9AM is doubtful.
75. Hence, material discrepancies have been crept in the evidence of the informant P.W.-18 and P.W.-15, as to time of occurrence of the alleged gunshot fire on the deceased, which prosecution has failed to answer and raises doubt in the prosecution case.
76. Accordingly, issue no. I has been answered. Re: issue no. II
77. Regarding the second issue as to testimony of the related witnesses, this court finds that in the present case apart from the informant P.W.-18 Sahood Mian, P.W.-4 Mahud Ansari and PW-6 Md. Azad, are related to the informant and the deceased.
78. P.W.-2 Anjur Mian and 13 Kurban Mian, is the cousin brother of the deceased, P.W.-4 Jahur Ansari is son of 32 the deceased and P.W.-6 Md. Azad is the nephew of the deceased.
79. Before proceeding further, at this juncture it would be apt to refer the judgments of Hon'ble Apex Court on the issue of related witnesses.
80. The position of law is well settled that the testimony of the witness even if related, one cannot be discarded mechanically rather the testimony is to be considered consciously, as has been held by Hon'ble Apex Court in the judgment rendered in Rizan v. State of Chhattisgarh (2003) 2 SCC 661, wherein it has been held which reads as under:
"6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In Dalip Singh v. State of Punjab it has been laid down as under:
(AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause 33 for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
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10. Again in Masalti v. State of U.P. this Court observed:
(AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-andfast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
[Emphasis supplied]
83. Likewise, the Hon'ble Apex Court in the judgment rendered in Shamim v. State (NCT of Delhi), (2018) 10 SCC 509 held as under:
"9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit. We see no reason why the same principle cannot be applied when such a witness deposes against a closely related accused. According to normal human behaviour and conduct, a witness would tend to shield and protect a closely related accused. It would require great courage of conviction and moral strength for a daughter to depose against her own mother who is an accused. There is no reason why the same reverse weightage shall not be given to the credibility of such a witness. PW 4 is the daughter of the appellant. She has deposed that two days prior to the occurrence the appellant had threatened the witness to leave PW 1 else she would get his family members killed. Soon after the occurrence having reached the house of her in-laws she stepped out on the verandah. The appellant who was 35 standing on her own verandah told the witness that she had got the deceased killed because the witness did not listen to her and that her husband would be killed next. In cross-examination she reiterated the same. The statement, in our opinion, can be considered as corroborative evidence being a voluntary extrajudicial confession, considering the nature of relationship between the witness and the appellant.
81. Similar view has been taken by Hon'ble Apex Court in the judgment rendered in Mohd. Rojali Ali v. State of Assam, (2019) 19 SCC 567 relevant paragraphs of which is quoted as under:
"13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki2; Amit v. State of U.P.3; and Gangabhavani v. Rayapati Venkat Reddy4). Recently, this difference was reiterated in Ganapathi v. State of T.N.5, in the following terms, by referring to the threeJudge Bench decision in State of Rajasthan v. Kalki2: (Ganapathi case5, SCC p. 555, para 14) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab6, wherein this Court observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources 36 which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person." 15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry)7: (SCC p. 213, para
23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
82. Thus, from the aforesaid settled position of law it is evident that the testimony of the witness even if related, one cannot be discarded mechanically rather the testimony is to be considered consciously.
83. Now this Court is adverting to the testimony of the related witnesses in order to appreciate their veracity in context to the alleged occurrence.
84. In the present case, P.W.-4 Mahud Ansari and P.W.-6 Md. Azad, are the son and nephew of the deceased Andu Mian, who had stated in their examination-in-chief that when they reached at the place of occurrence, they saw Andu Mian(deceased) in an injured condition and Andu Mian said that Kalim (appellant herein) and Ibrahim had shot him.
85. In the present case it is admitted fact that Andu Mian had died due to gunshot injuries.
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86. But, ongoing to the evidence of the doctor P.W.-16 Anand Kumar, who had conducted post mortem examination on the dead body of the deceased, he had found following ante-mortem injuries on the person of Andu Mian(deceased)-
(i) Lacerated wound 2" long running obliquely from dorsal surface of matacar po-phatangeal joint of right thumb to with phalaugeal joint on palmar surface width 1" margin ragged with blacking. Proximal phalanx, communuted fracture with laceration of sub tissues.
(ii) Lacerated wound 3/4" x 1/2" about 2.5" below the left nipple marginal blackened, ragged and waisted. Tatto marks present around 4" area from the wound. This the wound of entry.
(iii) Lacerated wound 1" x 1/2" evested margins situated on left side of back of chest 6" below left scapula and about 3" to the left of mid line. This is the wound of exit.
87. Doctor opined that death was caused due to hemorrhage and shock due to fire arm injuries caused by pistol.
88. In his cross-examination, doctor deposed that a man having such injuries may become unconscious and instantaneous death may be caused.
89. Hence, question arises when injury sustained by the Andu Mian(deceased) particularly the injury No.(ii), the gun shot injury at his chest, a person will become 38 unconscious and may also result in instantaneous death, then how it is possible that in such a situation a person will narrate his cause of his death by pinpointing the name of the assailant in detail.
90. Further, doctor P.W.-16 had deposed that he had conducted postmortem examination on 27.06.1994 at 9.30 A.M. and time elapsed since death was 48 hours.
91. Hence, prosecution has also failed to explain that when alleged murder took place on 26.06.1994, in the morning at 9.00A.M., and fardbeyan and FIR were registered on the same day itself i.e on 26.06.1994 at 11.30 A.M. and thereafter, inquest report Ext.-5 was prepared on the same day on 26.06.1994, then, in such situation, time elapsed since death within 48 hours, as noted by the doctor raises doubt on the case of the prosecution.
92. Hence, in the backdrop of the aforesaid fact this court is of the considered view that evidence of the related witnesses a P.W.-4 Mahud Ansari and P.W.-6 Md. Azad are not corroborated by the medical evidence.
93. Issue no. II answered accordingly.
Re : Issue No. (iii)
94. Now, coming to the issue whether the P.W. 1-Saleem Mian, P.W. 2-Anjur Mian, P.W. 7 Sharif Mian and P.W. 39 12 Ansari Mian can be treated to the eye witness to the alleged occurrence.
95. Ongoing through the evidences of these witnesses, this court finds that all these witnesses have stated in their evidence that on the alleged day of occurrence they were ploughing the field and on hearing sound of firing and halla, they had rushed towards the place of occurrence and saw Kalim (appellant herein) shot bullet on Andu Mian(deceased).
96. But, in the evidence; it has come that alleged incidence of shooting by fire-arm took place at village Kathghari. Informant P.W.-18, at paragraph-3 deposed that on his halla Ansari Mian (P.W.-12), Azul (P.W.-2), Saleem (P.W.-1) Shrif (P.W.-7), Rahumutulla had come to the place of occurrence.
97. Further, P.W.-1 Saleem Mian in his cross-examination had deposed that distance between Khatghari and Fulkati,is one mile (i.e about 1.5 K.M.).
98. On going through the form of heading of deposition of these alleged eye witnesses- P.W. 1-Saleem Mian, P.W. 2- Anjur Mian; P.W. 7 Sharif Mian and P.W. 12 Ansari Mian, this court finds that all these witnesses are resident of Fulkati (i.e. deceased village) and it is not possible to immediately reach at the alleged place of occurrence at Khatghari, which is 1.5 K.M. away from 40 Fulkati and witnessed the alleged incidence of shot of fire-arm by Kalim (appellant herein) upon the deceased.
99. Hence, this court is of the considered view that, P.W.- 1 Saleem Mian, P.W.-2 Anjur Mian P.W.-7 Sharif Mian and P.W.-12 Ansari Mian, cannot be treated as an eye witness to the occurrence of firing on the deceased Andu Mian.
100. Accordingly, issue no. III has been answered.
101. Further it needs to refer herein that 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, therefore, this Court has to see whether this case falls under the law, as propounded by Hon'ble Apex Court, in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., [(2000) 3 SCC 454] or not, wherein it has been held that 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. For ready reference, paragraph-22 of the judgment is quoted 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 41 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."
102. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka (2017) 13 SCC 98, has held at paragraph-26 as under: -
"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."
103. Further, 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) 42 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."
104. Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph- 32 and 33 has held as under:-
"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.43
33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- -
105. It needs to refer herein that The Hon'ble Apex Court, in the case of 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. --"
106. 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 :
"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 44 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.---"
107. This Court, after having discussed the factual aspect and legal position and considering the finding recorded by the learned trial Court, is of the view that the learned trial Court neither appreciated nor gave thoughtful consideration to the major and vital contradiction in the testimonies of the witnesses as well as other evidences available on record and has come to the conclusion that the prosecution has been able to prove the charge beyond all shadow of doubt against the present appellants, therefore, the impugned order requires interference by this Court.
108. This Court, in the entirety of the facts and circumstances, is of the view that the prosecution failed to prove the charges beyond all reasonable doubt for the reasons and grounds, as discussed hereinabove.
109. In consequence thereof, the instant appeal stands allowed.
110. Since the appellant is on bail, as such the appellant is acquitted of his criminal liability and discharged from the liability of his bail bonds.
111. Pending Interlocutory Applications, if any, stand disposed of.
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112. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
113. Before parting with this order, it requires to refer herein that this Court vide order dated 6th December, 2025 appointed Mr. Sumiran Srivastava, the learned counsel as Amicus to argue this criminal appeal on behalf of appellant. The assistance of the learned Amicus is highly appreciable.
114. In view thereof, the Secretary, Jharkhand High Court Legal Services Committee is directed to ensure payment of admissible fee in favour of learned Amicus.
I Agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
19/02/2026
Jharkhand High Court, Ranchi
Alankar / A.F.R.
Uploaded on 20.02.2026
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