Jharkhand High Court
Nishar Kuraishi Son Of Md. Salim ... vs The State Of Jharkhand on 15 October, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:31939-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 204 of 2003
......
[Against the Judgment of conviction dated 28.01.2003 and order of
sentence dated 29.01.2003, passed by learned Sessions Judge,
Lohardaga in Sessions Trial Case No.630 of 1991]
......
1. Nishar Kuraishi son of Md. Salim Kuraishi
2. Kalim Kuraishi son of Khalid Kuraishi
3. Jakir Kuraishi son of Sarfuddin Kuraishi,
All resident of Kuraishi Mohallah Kutmu Road, P.S. Lohardaga,
District - Lohardaga.
.... .... Appellants
Versus
The State of Jharkhand
.... .... Respondent
WITH
Criminal Appeal (D.B.) No. 272 of 2003
......
Belal Kuraishi son of Md. Safique Kuraishi resident of Kutmu
Road Kuraishi Mohalla P.S. Lohardaga and District Lohardaga
.... .... Appellant
Versus
The State of Jharkhand
.... .... Respondent
......
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
......
For the Appellants : Mr. R.S. Mazumdar, Sr. Advocate
For the State : Mr. Abhay Kumar Tiwary, A.P.P.
Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 1 |17
2025:JHHC:31939-DB
......
C.A.V. on 08.09.2025 Pronounced on 15.10.2025
Per Pradeep Kumar Srivastava, J.
1. We have already heard Mr. R.S. Mazumdar, learned senior counsel appearing for the appellants and Mr. Abhay Kumar Tiwary, learned A.P.P. appearing for the State.
2. It is to be mentioned at the very outset that original appellant No.2 Bashir Kuraishi in Cr. Appeal (DB) No.204 of 2003 has been died during the pendency of this appeal and vide order dated 16.07.2025, this appeal has been abated against him.
3. Instant criminal appeals arise out of judgment of conviction and sentence of the appellants passed by Additional Sessions Judge, Lohardaga in S.T. Case No.630 of 1991 dated 28.01.2003, whereby and whereunder the appellants have been held guilty for the offences under Sections 302/201 and 376 of the Indian Penal Code and sentenced to undergo R.I. for life along with fine of Rs.1000/- each for the offence under Section 302/34 of the I.P.C., further, sentenced to undergo R.I. for seven years for the offence under Section 201 of the I.P.C. and further sentenced to undergo R.I. for seven years for the offence under Section 376 of the I.P.C. All sentences are directed to run concurrently.
Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 2 |17 2025:JHHC:31939-DB FACTUAL MATRIX
4. Factual matrix giving rise to these appeals is that on 29.09.1990 at about 07:00 a.m., informant, Etwa Oraon, proceeded from his house for discharging natural call and arrived in the field of Hari Singh where he saw a man was lying covered with a shawl then he raised alarm and co-villagers namely Manka Oraon, Desai Oraon, Sudhwa Oraon, Bante Oraon and many other people assembled at the place of occurrence and saw that the person was lying tied under pool of blood. It is further alleged that at some distance of the said field, there was under construction well of Nanku Mian, wherein also a dead body was found floating whose both hands were tied from back side. Above incident was informed to police by the villagers and upon removing black shawl of deceased, it was found that his neck was cut and the dead body lying in the well was also brought out with the help of the villagers whose both hands were tied and neck was also wrapped with dupatta. It is further alleged that several local villagers and outsiders were present but no one could identify the dead bodies.
5. On the basis of above information, Lohardaga P.S. Case No.146 of 1990 dated 29.09.1990 (Ext.10) was registered against unknown miscreants for the offence under Section 302/201 of the I.P.C. In the course of investigation, some suspects were apprehended and Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 3 |17 2025:JHHC:31939-DB their confessional statement was recorded by police and statement of some witnesses under Section 164 of the Cr.P.C. was also recorded.
6. After completion of investigation, charge-sheet was submitted against aforesaid appellants for the offences under Sections 302/201, 452, 376/34 of the I.P.C. The case was committed to the Court of sessions where S.T. Case No.630 of 1991 was registered. The accused persons denied the charges and did not plead guilty and claimed to be tried.
7. In the course of trial, altogether 8 witnesses were examined by the prosecution Apart from oral testimony of witnesses, following documentary evidence have been adduced :-
Exhibit 1 & 2 : P.M. Report of deceased persons Exhibit 3 : Signature of Etwa Oraon on fardbeyan Exhibit 4 : Signature of Haron Rashid on seizure list Exhibit 5 : Statement of Munni Orain under Section 164 Cr.P.C.
Exhibit 5/1 : Statement of Mutu Devi under
Section 164 Cr.P.C.
Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 4 |17
2025:JHHC:31939-DB
Exhibit 5/2 : Statement of Laxmi Orain @
Chouthi under Section 164 Cr.P.C.
Exhibit 6 : Injury report of Mutu Devi
Exhibit 6/1 : Injury report of Munni Orain
Exhibit 7 & 7/1 : Carbon copy of inquest report
Exhibit 8 to 8/2 : Seizure list
Exhibit 9 : Fardbeyan
Exhibit 10 : Formal F.I.R.
8. On the other hand, no oral or documentary evidence has been adduced by defence.
9. The case of defence is denial from occurrence and false implication on the basis of extorted confession by police.
10. The learned trial court after discussing the oral as well as documentary evidence available on record came to the conclusion that there is no eye witness of the occurrence. It was further observed that confessional statement of accused Nishar Kuraishi @ Nanka before police clearly shows that he along with one Kalim Kuraishi went to the shop of Kishore Sahu where Bashir Kuraishi, Belal Kuraishi and Jakir Kuraishi also accompanied him and all the five persons went to the house of Matu Oraon and found that Matu Oraon and his colleague were sleeping with their wives, they tied the hands of both the male persons and put them Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 5 |17 2025:JHHC:31939-DB in another room. Thereafter, Bashir Kuraishi and Kalim Kuraishi committed rape with their wives. Thereafter, Nishar Kuraishi and Jakir also committed rape with those ladies since they were recognized by the male members Matu Oraon and Surya Jain Sahu, hence, they killed them and disposed of the dead bodies at the place of occurrence. The learned trial court relied upon further circumstance that on the basis of confessional statement of accused Nishar Kuraishi @ Nanka, a knife was recovered and seized. The Investigating Officer has also seized woolen shawl and two torn sari pieces and blood stained soil from the place of occurrence and prepared seizure list. The learned trial court has further relied upon statements of some witnesses recorded under Section 164 of the Cr.P.C. Although during trial either they have not been examined or declared hostile and recorded the findings of guilt of the appellants which has been assailed in this appeal.
11. Learned senior counsel appearing for the appellants has vehemently argued that the learned trial court has committed serious error of law in admitting the legally inadmissible evidence as a basis of the conviction of appellants. The learned trial court has obviously recorded finding that there is no direct evidence at all against any of the accused persons. The circumstantial evidence relied upon by the learned trial court is the confessional Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 6 |17 2025:JHHC:31939-DB statement of some accused recorded by police. There was no discovery of any incriminating article on the basis of alleged confessional statement. No material exhibit has been brought on record connecting the appellants with the offences charged against them. Further, the learned trial court has acted upon the statement under Section 164 Cr.P.C. of some witnesses as substantive piece of evidence. Although during trial, the said witnesses have been declared hostile or not examined at all. Therefore, the approach of the learned trial court is absolutely not warranted under law and conviction and sentence passed against the appellants is absolutely illegal and based on inadmissible evidence. Hence, impugned judgment and order of conviction and sentence requires interference in this appeal and liable to be set aside. The appellants deserve acquittal from the charges leveled against them.
12. On the other hand, Mr. Abhay Kumar Tiwary, learned Additional Public Prosecutor for the State defending the impugned judgment of conviction and sentence of appellants has submitted that the learned trial court to the best of its ability analyzed, appreciated and marshalled the incriminating circumstances appearing against the appellants and arrived at conclusion of guilt of the appellants.
There is no merit in this appeal which is fit to be dismissed.
Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 7 |17 2025:JHHC:31939-DB
13. We have gone through the evidence adduced by the prosecution and perused the impugned judgment and order of conviction and sentence of the appellants in the light of contentions raised on behalf of both side.
14. P.W.1 Dr. Murli Manohar Sengupta has proved the post-mortem report of unknown deceased persons in this case.
(i) On 30.09.1990 at 01:20 p.m., he had held autopsy on the dead body of one unknown person Hindu male aged about 25 years and found following injuries :-
(a) Rigor mortis present in lower limb but above in upper limb. Bluish discoloration over the abdomen. Both lungs congested. Both sides of heart empty. Liver pale. Spleen & Kidney congested stomach contains semi digested food particles.
(b) External injury One incised wound over the upper part of middle of neck size 5" x 1.1/2" x ½" cutting across the thyroid cartilage trachea, esophagus & other vessels and muscles. Both eyes closed.
He has opined that cause of death was due to shock and haemorrhage due to above injuries. The injuries were caused by sharp cutting weapon. Time elapsed since death about 36 hours.
Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 8 |17 2025:JHHC:31939-DB
(ii) On the same day at 01.05 p.m., he had held autopsy on the dead body of another unknown male aged about 28 years and found following injuries :-
Rigor mortis present in lower limbs but absent in upper limbs. Bluish disclura has on abdomen due to decomposition. Both lungs congested. Heart - Right side full of blood, left side empty. Mouth - semi open. Tongue bluish and swollen. Stomach contained semi digested food particles. Liver, spleen and both kidneys - congested. Face and eye lids swollen and congested. Bleeding from nose, mouth and ear present. Eyes closed and conjugative congested. Fracture of lower end of humorous bones of both left and right sides. There was ligature mark in the level of middle of neck relating the neck size ¾" about. The base of ligature mark is dry and parchment like that was extra vaslaut blood into the subcutaneous tissues under the ligature mark. There was extra vasahar of blood in the adjacent muscles of neck. Mark of abrasion present on the neck size ½" linear long. Larynx and trachea congested and contains frothy mucous. Genital organs normal. There was defecation.
Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 9 |17 2025:JHHC:31939-DB He has opined the cause of death was due to asphyxia due to strangulation. Time elapsed since death about 36 hours. P.W.2 Etwa Oraon has deposed that on the date of occurrence at about 07:00 - 07:30 a.m., he was going to discharge nature's call and reached at the field of Amar Singh where he saw a dead body covered with black bed sheet. He raised alarm then several villagers assembled and information to Lohardaga Police Station was also given. Thereafter, one dead body was also found floating in the nearby well of Nanka Mian. Both the dead bodies were taken by police. One dead body was lying on earth and his neck was cut and another in the well was found both hands tied from behind and mouth was gagged with some clothes. He has also signed over the fardbeyan marked Ext.3. Both the dead bodies were brought to Sadar Hospital, Lohardaga where in the evening at about 03:04 p.m., the wives of both the deceased came to hospital and identified their respective husbands. There is nothing else in his evidence.
P.W.3 Harun Rashid has been declared hostile by the prosecution and expressed no knowledge about the occurrence. P.W.4 Laxmi Orain @ Chouthi has been declared hostile by the prosecution. She has denied any statement before police.
Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 10 |17 2025:JHHC:31939-DB P.W.5 Arun Kumar Judicial Magistrate Class-I, has recorded the statement under Section 164 Cr.P.C. of witnesses Munni Orain, Mutu Devi, Laxmi Orain @ Chouthi which are marked as Ext.5, Ext.5/1 and Ext.5/2 respectively.
P.W.7 Dr. S. Tuddu has proved the medical examination report of one Mantu Devi W/o Fulchand Sah and found following injuries :-
(i) Teeth - 14 x 14. Height - 5 feet. Weight - 40 kg.
Axillary over pubic hair found. Breast - Pendulum. No external injury was found.
(ii) Internal Injuries :-
Valve swollen, vaginal bleeding present. Vagina admit two finger loose. Microscopic examination spermatozoa found in vagina. Sign of repeated coitus present. Age about 18 years. Advised for x-ray. Vaginal sperm sent for examination. Age of coitus within 72 hrs. On the same day at 03:00 p.m., he examined Munni Uraon W/o Mantoo Uraon and found following injuries :-
No external injury was found. On internal examination valve swollen both sides. Vagina admits two finger easily. Inner part of mucus membrane of the vagina and some are Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 11 |17 2025:JHHC:31939-DB congested red in colour. On microscopic examination supermom present. Sign of repealed coitus present. P.W.6 Lalkrishna Kumar Nath Sahdev has deposed that about three years ago on the occasion of Dussehra at about 08:00
- 08:30 p.m., he had gone to police station along with Bhaiya Chandrapiyare Nath Sah (Mukhiya) where police officer told that two murders have been occurred today and he has apprehended the accused persons. The police officer also presented the accused persons before them but they did not identify them. One of the accused was said to be one Kuraishi but he has made no statement before him. The police has taken signature on some paper of this witness and nothing else.
P.W.8 S.I. Yadunandan Singh is the Investigating Officer of this case. According to his evidence, on 30.09.1990, he was posted as Officer-In-Charge of Lohardaga Police Station. The charge of investigation of this case was taken from S.I. Yagendra Nath. In this case, two ladies were raped and their respective husbands were murdered by the miscreants. He recorded statement of two ladies who were raped and also proceeded for inspection of the place of occurrence. According to him, the place of occurrence of this case is the field of Arvind Shah where rape was committed with two ladies and their husbands were Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 12 |17 2025:JHHC:31939-DB murdered. He found dead body of one Mutu Sao on the field and there was mark of dragging the dead body and another dead body was found in the well at some distance. He has further deposed that near the place of occurrence, there was big piece of stone wherein incident of rape took place and semen was also present there and some semen was also found in the pieces of sari. He got recorded statement of both victims of rape under Section 161 Cr.P.C. and prepared the inquest report of deceased persons marked Ext.6 and Ext.6/1. He has also proved the seizure list as Ext.8 and Ext.8/1. A khukhari was also received from accused Nishar Kuraishi on the basis of his confessional statement and seizure list was prepared (Ext.8/2). Fardbeyan of the informant was recorded by S.I. Yogendra Razak which is marked as Ext.9 and formal F.I.R. as Ext.10.
In his cross-examination, he admits that the seized Khukhari has not been produced before Court. He has also not seized the pieces of sari and stone where mark of semen was found and the said materials were not sent for chemical examination to F.S.L. He has also not seized any sari of the victim ladies.
15. We have given anxious consideration to the aforesaid testimony of witnesses examined in this case which reveals that the story projected during investigation of the case by recording statement Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 13 |17 2025:JHHC:31939-DB of three ladies namely Munni Orain, Mutu Devi and Laxmi Orain @ Chouthi (P.W.4) under Section 164 Cr.P.C. stating inter alia that the present appellants arrived at their home and attempted to commit rape with them which was seen by their husbands, therefore, the appellants have taken away the husbands of these victims assaulting and dragging towards the place of occurrence and killed them but out of above three witnesses only Laxmi Orain @ Chauthi was examined as P.W.4 and she has been declared hostile by the prosecution. Therefore, there remains no evidence at all to convict the appellants for the offence under Section 376 of the I.P.C. It further transpires that the witnesses of facts examined in this case P.W.2 Etwa Oraon, P.W.3 Harun Rashid, P.W.4 Laxmi Orain @ Chouthi and P.W.6 Lalkrishna Kumar Nath Sahdev have stated nothing against the appellants showing their involvement in any manner in causing the murder of two deceased persons involved in this case. Although, there is no doubt, as per postmortem report of the deceased persons, the death was homicidal due to causing injuries by sharp cutting weapons. The evidence of I.O. S.I. Yadunandan Singh (P.W.8) goes to show that during investigation, he found cue that two ladies were raped in presence of their respective husbands, who have been murdered by the miscreants. He recorded the statement Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 14 |17 2025:JHHC:31939-DB of those two ladies namely Mutu Devi and Munni Orain under Section 161 Cr.P.C. as well as Section 164 Cr.P.C. by the Judicial Magistrate. He also recorded confessional statement of accused Nishar Kuraishi. The victims' sarees were also seized but not sent to F.S.L. for chemical examination. The aforesaid materials collected during investigation were the basis of submission of charge-sheet against the appellants. The learned trial court has also made the basis of conviction of appellants, the confessional statement of appellant Nishar Kuraishi before police, khukhari was recovered from him and seizure list was prepared marked as Ext.8/2.
16. From perusal of impugned judgment, it is crystal clear that the learned trial court has convicted the appellants only on the basis of confessional statement of accused recorded by police and statement of alleged victims of rape recorded under Section 164 Cr.P.C. Both the above evidences are inadmissible under law. Admittedly, nothing has been discovered on the strength of confessional statement of appellant showing his involvement in the alleged crime. A statement recorded under Section 164 Cr.P.C. of the witness has only corroborative value and cannot be treated as substantive evidence rather the evidence of the witness whose statement has been recorded under Section 164 Cr.P.C. must be Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 15 |17 2025:JHHC:31939-DB accepted if he/she is examined during trial after subjecting him/her to the cross-examination by the defence may be considered as substantive evidence. In the instant case, the witness P.W.4 Laxmi Orain @ Chouthi alone has been examined but declared hostile by the prosecution. The rest of the witnesses whose statement were recorded under Section 164 Cr.P.C. namely Mutu Devi and Munni Orain have not been examined by the prosecution, but the learned trial court has accepted their statements recorded under Section 164 Cr.P.C. by P.W.5 Arun Kumar, Judicial Magistrate Class-I, as substantive piece of evidence. Therefore, the approach of the learned trial court is absolutely unwarranted under law and the conviction of appellants has been based upon inadmissible evidence. It is quite obvious that if statement under Section 164 Cr.P.C. of Mutu Devi and Munni Orain along with confessional statement of appellants is excluded from consideration, there remains nothing to establish the prosecution case as propounded during investigation.
17. In our considered view, the learned trial court has committed serious error of law in recording the guilt of appellants only on the basis of inadmissible materials. There is no direct or circumstantial evidence adduced by the prosecution to prove the charges levelled against the appellants beyond all reasonable Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 16 |17 2025:JHHC:31939-DB doubts. Therefore, we find merits in this appeal. Accordingly, impugned judgment and order of conviction and sentence of the appellants is hereby set aside and these appeals are allowed. The appellants are on bail. They are discharged from the liability of their bail bonds and sureties are also discharged.
18. Let a copy of this judgment along with trial court record be sent back to concerned trial court for information and needful.
19. Pending I.A., if any, stands disposed of.
(Rongon Mukhopadhyay, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated: 15/10/2025 Sachin / NAFR Cr. Appeal (D.B.) Nos.204 of 2003 & 272 of 2003 P a g e 17 |17