Jharkhand High Court
Sajjad Qurashi @ Husuru vs The State Of Jharkhand on 29 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:13144
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal No.632 of 2010
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Sajjad Qurashi @ Husuru, Son of Muslim Quarashi, Resident
of Shivlibari, P.O. and P.S. Chirkunda, District Dhanbad.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
With
Acquittal Appeal No.12 of 2010
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State of Jharkhand ... ... Appellant
Versus
1. Gullu Alam @ Gulzar Alam, son of Bashi @ Bashir Alam,
resident of Shipli Bari, Nichche Mohalla, Police Station, P.O.
Chirkunda (Kumardhubi), District Dhanbad.
2. Sakaldeep Gaur @ Raja Khatik, S/o Late Teeta Gaud,
resident of Kenduadih, Kulali More, P.O. & Police Station
Kenduadih, District Dhanbad. ... ... Respondents
With
Criminal Appeal No.687 of 2010
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1. Guddu Alam @ Irfan Alam @ Rangeela, son of Wasi @ Bashir
Alam, resident of Chirkunda, P.O. & P.S. Chirkunda, District
Dhanbad.
2. Sinu Ansari @ Sagar Ansari @ Sonu @ Sonu Ansari, son of
Kalam Ansari @ Thania, resident of Chirkunda, P.O. & P.S.
Chirkunda, District Dhanbad. ... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
With
Criminal Revision No.741 of 2010
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Sakaldeep Gaur @ Raja Khatik, S/o Late Jeeta Gaud, resident
of Kenduadih, Kulali More, P.O. & Police Station Kenduadih,
District Dhanbad. ... ... Petitioner
Versus
1. The State of Jharkhand
2. Shri Guddu Alam @ Irfan Alam @ Rangeela, son of Bashi @
Bashir Alam, resident of Shivli Bari, Nichche Mohalla, P.O.
Kumardhubi, Police Station Chirkunda (Kumardhubi), District
Dhanbad.
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2025:JHHC:13144
3. Shri Sajjad Qurashi @ Husuru, Son of late Muslim
Quarashi, Resident of Shivli Bari, Nichche Mohalla, P.O.
Kumardhubi, Police Station Chirkunda (Kumardhubi), District
Dhanbad.
4. Sonu Ansari @ Sagar Ansari, son of Kalam Ansari Resident
of Shivli Bari, Nichche Mohalla, P.O. Kumardhubi, Police
Station Chirkunda (Kumardhubi), District Dhanbad.
... ... Opposite Parties
-----
(Against the Judgment of Conviction/acquittal dated 30.04.2010 and Order
of sentence dated 10.05.2010, passed by the learned Sessions Judge,
Dhanbad in Sessions Trial No.04 of 2010).
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Cr.A. Nos.632/2010 & 687/2010
For the Appellant : Mrs. Jasvindar Mazumdar, Advocate
For the State : Mrs. Vandana Bharti, Spl. P.P.
: Mr. Vineet Kr. Vashistha, Spl. P.P.
For the Informant : Ms. Ashwini Priya, Advocate
: Mr. Akhouri Avinash Kumar, Adv.
Acquittal Appeal No.12/2010
For the Appellant-State : Mrs. Priya Shrestha, Spl. P.P.
: Mr. Vineet Kr. Vashistha, Spl. P.P.
For the Respondent No.1 : Mrs. Jasvindar Mazumdar, Advocate
For the Respondent No.2 : Ms. Ashwini Priya, Advocate
: Mr. Akhouri Avinash Kumar, Adv.
Criminal Revision No.741 of 2010
For the Petitioner : None
For the State : Mrs. Vandana Bharti, Spl. P.P.
For the Resp. Nos. 2, 3 & 4 : Mrs. Jasvindar Mazumdar, Advocate
--------
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
-------
C.A.V. on 04.03.2025 Pronounced on 29.04.2025
Per Sujit Narayan Prasad, J.
1. Criminal Appeal (DB) No. 632 of 2010 and Criminal Appeal (DB) No.687 of 2010 have been preferred by the accused/convicts against the Judgment of conviction dated 30.04.2010 and Order of sentence dated 10.05.2010, passed by the learned Sessions Judge, Dhanbad in Sessions Trial -2- 2025:JHHC:13144 No.04 of 2010 arising out of Chirkunda (Galpharbari) P.S. Case No.195 of 2009 corresponding to G.R. Case No.2849 of 2009 convicting the appellants whereas Acquittal Appeal No.12 of 2010 has been preferred by the State challenging the acquittal of one accused, namely, Gullu Alam @ Gulzar Alam and Criminal Revision No.741 of 2010 has been preferred by the informant Sakaldeep Gaur @ Raja Khatik (now dead), challenging the same impugned Judgment for enhancement of sentence awarded to the appellants of Criminal Appeal (DB) Nos.632 of 2010 and Criminal Appeal (DB) No.687 of 2010, as such, with the consent of the learned counsel for the parties, all the aforesaid cases have been heard together and are being disposed of by this common Judgment.
Criminal Revision No.741 of 2010
2. The instant criminal revision application has been preferred by the informant Sakaldeep Gaur @ Raja Khatik for enhancement of sentence awarded to Sajjad Quraishi @ Husuru appellant in Criminal Appeal (DB) No.632 of 2010 and convicts Guddu Alam @ Irfan Alam @ Rangeela and Sinu Ansari @ Sagar Ansari @ Sonu @ Sonu Ansari appellants in Criminal Appeal (DB) No.687 of 2010 vide Judgment of conviction dated 30.04.2010 and Order of sentence dated 10.05.2010, passed by the learned Sessions Judge, Dhanbad in Sessions Trial No.04 of 2010 arising out of Chirkunda -3- 2025:JHHC:13144 (Galpharbari) P.S. Case No.195 of 2009 corresponding to G.R. Case No.2849 of 2009.
3. It appears from order dated 20th January, 2021 passed by the Coordinate Bench of this Court that the informant of the case/petitioner of Criminal Revision No.741 of 2010 has passed away during the pendency of the criminal revision and till date no application has been filed on behalf of his legal heirs to pursue the matter before this Court.
4. Since the informant has died during the pendency of Criminal Revision No.741 of 2010 and no application on his behalf by any of his legal heirs has been filed for substitution, therefore, this Court is of the view that in absence of any application to sue the case, the instant criminal revision cannot proceed and accordingly, stands dismissed. Prayer made in Criminal Appeal (DB) No.632 of 2010 and Criminal Appeal (DB) No.687 of 2010
5. The appeals are directed Judgment of conviction dated 30.04.2010 and Order of sentence dated 10.05.2010, passed by the learned Sessions Judge, Dhanbad in Sessions Trial No.04 of 2010 arising out of Chirkunda (Galpharbari) P.S. Case No.195 of 2009 corresponding to G.R. Case No.2849 of 2009, registered under Sections 302, 201, 379/34 of the Indian Penal Code for committing murder of Jitendra Gour, Pramod Verma and Firoz on 03.09.2009 which culminated -4- 2025:JHHC:13144 into the judgment of conviction convicting accused/appellant namely, Sajjad Qurashi @ Husuru appellant in Cr. Appeal (DB) No.632 of 2010 and Sonu Ansari @ Sagar Ansari appellant in Criminal Appeal (DB) No.687 of 2010, under Sections 148, 302, 302/149 and 201 of the Indian Penal Code. Further accused, namely, Guddu Alam @ Irfan Alam @ Rangeela appellant in Cr. Appeal (DB) No.687 of 2010 has also been convicted under 148, 302/149 and 201 of the Indian Penal Code. Accordingly, Sajjad Qurashi @ Husuru, Guddu Alam @ Irfan Alam @ Rangeela and Sonu Ansari @ Sagar Ansari have been directed to undergo R.I. for three years and fine of Rs. 5000 for offence under Section 148 I.P.C. and in default of payment of fine, S.I. for 6 months, R.I. for seven years and fine of Rs.10,000/- for offence under Section 201 I.P.C. and in default of payment of fine, S.I. for 6 months. The convicts Sajjad Quraishi @ Husuru and Sonu Ansari @ Sagar Ansari have been directed to undergo imprisonment for life with fine of Rs.10,000/- for the offence committed by them under Section 302 I.P.C. and in default of payment of fine, S.I. for 6 months. The convict, namely, Guddu Alam @ Irfan Alam @ Rangeela has also been sentenced to undergo imprisonment for life with fine of Rs.10,000/- for the offence committed by him under Section 302/149 I.P.C. and in default of payment of fine, S.I. for 6 months. No sentence has been awarded to the convicts for the offence committed by them under Section 379 -5- 2025:JHHC:13144 I.P.C.
Acquittal Appeal No.12 of 2010
6. The State-appellant in Acquittal Appeal No.12 of 2010 is aggrieved by the impugned Judgment of conviction dated 30.04.2010 and Order of sentence dated 10.05.2010, passed by the learned Sessions Judge, Dhanbad in Sessions Trial No.04 of 2010 arising out of Chirkunda (Galpharbari) P.S. Case No.195 of 2009 corresponding to G.R. Case No.2849 of 2009, whereby the accused respondent, namely, Gullu Alam @ Gulzar Alam, who was facing the trial for the offences under Sections 302, 201, 379/34 of the Indian Penal Code, has been acquitted of the charges.
Factual Matrix of the case
7. The prosecution case is based upon the fardbayan of the informant Sakaldeep Gour @ Raja Khatik alleging therein that he and his son Jitendra Gour were carrying out business of scrap materials. On 03.09.2009 at about 8:30 PM, Firoz along with two persons came to his godown and took away his son Jitendra. Pramod Varma the driver of the informant also accompanied them. Jitendra was carrying Rs.20,000/-cash with him. Jitendra and Pramod did not return home. On the next day, the informant started looking for their whereabout. When he reached near Shivlibari, he came to know that three persons were murdered in Shivlibari club and their dead -6- 2025:JHHC:13144 bodies were thrown in a drain near Rajpura Colliery. In order to conceal the identity of the deceased persons the accused persons had tried to immolate the corpse. The informant also came to know that Guddu, Niraj, Naushad Ansari, Husuru @ Sajjad, Chotu Ansari, Rinku Ansari and Gullu Ansari had murdered the deceased persons. The informant went to the place where the dead bodies were lying. He identified the dead bodies as that of his son, Jitendra, his driver Pramod and Firoz.
8. On the basis of the fardbeyan Chirkunda (Galpharbari) P.S. Case No.195 of 2009 dated 04.09.2009 was instituted against eight F.I.R. named accused persons under Sections 302/201/379/34 of the Indian Penal Code and after due investigation chargesheet was submitted against the appellants and the other accused persons.
9. After cognizance of the offence, the case was committed to the Court of Sessions. Charge under Sections 302, 201, 379, 148 and 302/149 of the IPC was framed to which the accused persons pleaded not guilty and claimed to be tried.
10. In order to prove its case, the prosecution has examined 25 witnesses, namely, Alok Kumar Rai as P.W. 1, Pramod Rawani as P.W. 2, Devendra Kumar Chaurasia as P.W. 3, Tappu Pandey as P.W. 4, Md. Sabir @ Lal Babu as P.W. 5, Salauddin as P.W. 6, Ghulam Rasool as P.W. 7, Zia-ul- -7-
2025:JHHC:13144 Hussain as P.W. 8, Md. Eklakh as P.W. 9, Md. Idris as P.W. 10, Md. Asgar Qurashi as P.W. 11, Mina Khatoon as P.W. 12, Saimun Mishra as P.W. 13, Sabra Khatoon as P.W. 14, Salim Khan as P.W. 15, Bindeshwari Pandey @ Raju Pandey as P.W. 16, Awadhesh Paswan as P.W. 17, Bijay Prasad as P.W. 18, Kundan Singh as P.W. 19, Arun Kumar Singh as P.W. 20, Shri Pramod Kumar as P.W. 21, Sakaldeep Gour @ Raja Khatik (informant) as P.W. 22, Dr. Shailendra Kumar as P.W. 23, Manjoor Alam as P.W. 24 and Raj Narayan Singh as P.W. 25.
11. The prosecution also adduced the documentary evidences. Signature of Alok Kumar Rai on seizure list is Ext.-
1. Ext.-1/1 is signature of Bindeshwari Pandey on Seizure list. Ext.-2 is Signature of Pramod Kr. Rawani on fardbeyan. Ext.- 2/1 is signature of Sakaldeep Gour on fardbeyan. Ext.-3 is signature of Devendra Kumar Chourasia on inquest report of Jitendra Gour. Ext.-3/1 is signature of Bindeshwari Pandey on inquest report of Jitendra. Ext.-3/2 is signature of Arun Kumar Singh on inquest report of Jitendra Gour. Ext.-4 is Signature of Devendra Kumar Chourasia on inquest report of Firoz Khan. Ext.-4/1 is signature of Bindeshwari Pandey on inquest report of Firoz. Ext.-4/2 is signature of Arun Kumar Singh on inquest report of Firoz. Ext.-5 is signature of Ziaul Hussain on seizure list. Ext.-5/1 is Signature of Md. Asgar Qurashi on seizure list. Ext.-6 is signature of Ziaul Hussain on -8- 2025:JHHC:13144 sealed envelope. Ext.-6/1 is signature of Asgar Qurashi on envelope Ext.-7 is signature of Ziaul Hussain on seizure list. Ext-7/1 is signature of Asgar Quarashi on Seizure list. Ext.-8 is signature of Ziaul Hussain on Carbon copy of seizure list. Ext.-8/1 is signature of Asgar Qurashi on carbon copy of Seizure list. Ext.-9 is signature of Ziaul Hussain on seizure list. Ext.-9/1 is signature of Asgar Quereshi on Seizure list. Ext.-9/2 is signature of Pramod Kumar on Seizure list. Ext.- 9/3 is signature of Guddu Alam on Seizure list. Ext.-9/4 is signature of R.N. Singh on Seizure list of thela. Ext.-10 is signature of Bindeshwari Pandey on cartoon box. Ext.-11 is inquest report of Jitendra Gour. Ext.-12 is inquest report of Firoz Khan. Ext.-13 is Seizure list of Bora and Saree. Ext.-14 is Seizure list of motor cycle Ext.-15 is seizure list of pistol and bullet. Ext.-16 is seizure list of thela (cart). Ext.-17 is P.M. Report of Pramod Verma. Ext.-18 is P.M. Report of Jitendra Gour. Ext.-19 is P.M. Report of Firoz Khan. Ext-20 is F.S.L. Report. Ext.-21 is Fardbeyan of Sakaldeep Gour. Ext.-22 is Formal FIR. Ext.-23 is Inquest report of Pramod Verma. Ext- 24 is seizure list of cartridge. Ext.-25 is seizure list of steel jug and hair. Ext-26 is Memo of finger print. Ext.-27 is the confessional statement of Guddu Alam. Ext.-28 is confessional statement of Md. Sajjad. Ext.-29 is C.D.R. of mobile of Sonu. Ext.-30 is C.D.R. of mobile of Firoz Ext.-31 is C.D.R. of mobile of Afzal. Ext-32 is written report of Chirkunda P.S. Case No. -9- 2025:JHHC:13144 66/10 and Ext.-33 is written report of Dhanbad P.S. Case No. 139/10. The prosecution has also adduced material evidences in support of their case. Material Ext.-I is one Cartridge (Khokha). Material Ext.-II is Thela. Material Ext.-III is Bora. Material Ext.-IV is piece of Sari. Material Ext-V is cartoon Box. Material Ext.-VI is one pistol. Material Ext.-VI/I is one bullet. Material Ext.-VII is Motor cycle bearing No. JH-10-R6575. Material Ext.-VIII is C.D. (two).
12. The learned trial court, on appreciation of the evidences produced on behalf of the prosecution, has found the allegation proved beyond all reasonable doubt and accordingly, passed the judgment of conviction and order of sentence which is impugned in this appeal. Argument advanced on behalf of the appellants in Criminal Appeal (DB) No.632 of 2010 and Criminal Appeal (DB) No.687 of 2010
13. Mrs. Jasvindar Mazumdar, learned counsel for the appellants in Criminal Appeal (DB) No.632 of 2010 and Criminal Appeal (DB) No.687 of 2010, has submitted that the impugned Judgment of conviction and Order of sentence passed by the learned trial court cannot be sustained in the eyes of law.
14. The following grounds have been taken by the learned counsel for the appellants in assailing the impugned judgment of conviction:
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2025:JHHC:13144
(i) The appellants have been falsely implicated in this case and the prosecution case suffers from several infirmities and improbabilities.
(ii) The ground has been taken that the conviction is based upon the evidence of eye witnesses without having been fully corroborated by the other evidences and as such conviction cannot be said to be based on sound reasoning.
(iii) No independent witnesses have come forward in support of the manner of occurrence.
(iv) Further, the weapons alleged to be used in the commission of crime, i.e., Lathi, Rod etc. have not been recovered during investigation.
(v) One country made pistol has been seized but as per the testimony of the doctor, no firearm injury was found on the persons of any of the deceased.
(vi) Further, as per the opinion of the doctor who had conducted postmortem upon the dead bodies of the deceased persons, the injuries were caused by hard and blunt substance like lathi and rod etc. and sharp cutting weapon but no such weapons were recovered during investigation.
(vii) Further, no motive has been brought forward by the prosecution and in the absence of any motive it is not safe to rely upon the evidence of witnesses.
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(viii) There are material contradictions in the testimonies of the witnesses.
(ix) The place of occurrence has not been proved by the prosecution.
(x) None of the witness has seen the occurrence and the witness who claims to be the eye witness cannot be said to be the eye witness to the offence.
(xi) The prosecution has failed to prove that the blood stains found at the place of occurrence were of the human being or not.
(xii) The vital witness, i.e., one D.N. Pathak, with whom the eye witnesses, i.e., PW-18 and PW-19, claim to have seen the occurrence, has not been examined and hence serious prejudice has been caused since he was the best person to disclose about the commission of crime.
(xiii) No investigation with respect to the owner of the cart said to be used for carrying the dead bodies from the first place of occurrence to the second place of occurrence, has been done and, as such, it can be said that the investigation was done in a perfunctory manner.
(xiv) The motive as per the prosecution version is not concrete.
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2025:JHHC:13144
15. Learned counsel for the appellants, on the basis of these grounds, has submitted that the instant appeal may be allowed by quashing and setting aside the judgment of conviction.
Argument advanced on behalf of the respondents in Criminal Appeal (DB) No.632 of 2010 and Criminal Appeal (DB) No.687 of 2010
16. Per contra, Mr. Vineet Kumar Vashistha, learned Special Public Prosecutor, appearing for the respondent State, has defended the impugned judgment of conviction on the following grounds:-
(i) It is a case where the prosecution has been able to prove the charge beyond all reasonable doubt, since as per the eyewitnesses the assault was inflicted upon the deceased persons by these appellants.
(ii) The prosecution witnesses have conclusively supported the prosecution version.
(iii) Learned counsel for the State has further submitted that the eye witnesses since have made meticulous description of the occurrence, which has been corroborated by medical evidence and other witnesses, as such the evidence of eye witnesses is to be fully relied upon while proving the charge against accused persons.
(iv) So far question of motive is concerned, it has come during investigation that two persons had love
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2025:JHHC:13144 affairs with one girl and due to that reason the murder has been committed, so it cannot be said that motive is absent in the case at hand.
(v) The occurrence has been corroborated by the medical evidence wherein the Doctor has found the nature of injuries having been caused by hard and blunt substance as narrated by the eye's witnesses.
17. Learned counsel for the State respondent, on the basis of the aforesaid grounds, has submitted that the impugned judgment suffers from no infirmity and needs no interference. Argument advanced on behalf of appellant-State in Acquittal Appeal No.12 of 2010
18. Mr. Vineet Kumar Vashistha, learned Special Public Prosecutor appearing for the State appellant in Acquittal Appeal No.12 of 2010 has taken the following grounds in assailing the impugned judgment of acquittal:-
(i) The respondent was member of the unlawful assembly for committing murder of Jitendra Gour, Pramod Verma and Firoz in prosecution of common object.
(ii) Accused Gullu Alam @ Gulzar Alam was all along present at the place of occurrence being part of the unlawful assembly having a common object of committing murder of the deceased Jitendra Gour, Pramod Verma and Firoz.
(iii) P.W.-18 Bijay Prasad and P.W.-19 Kundan Singh both
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2025:JHHC:13144 the eye witnesses have stated that when they came out of the quarter of Guddu Alam, after seeing the occurrence they saw a person talking on a mobile phone and during the course of trial the P.W.-18 Bijay Prasad identified the respondent in doc who was seen talking on the mobile phone.
(iv) The respondent has examined himself as D.W.-1 to testify that he has been residing separately from his brother Guddu, who is the main accused which creates a serious doubt regarding his conduct because during the course of trial this is not the point of determination whether he resides with Guddu or not.
(v) The eye witnesses P.W.-18 and P.W.-19 have stated in their evidences adduced in court that all the three deceased were being brutally assaulted by the other co- accused persons and when they entered in the house they found that one person was badly blood stained lying on the floor and two deceased persons were being assaulted by the other co-accused persons and the said deceased persons fell down on the ground in their presence when they requested to release them all the accused persons threatened and ousted the witnesses when the witnesses came out they found one person talking on mobile to who they could not identify by name
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2025:JHHC:13144 but "Pathakji" told them that he was brother of Guddu.
(vi) From the evidence of P.W.-18 and P.W.-19 it is apparent that one respondent was not a silent spectator rather he was engaged in talking to someone on his mobile phone and from his conduct it is certain that he was not engaged in saving the deceased persons rather he was facilitating the other co-accused persons in committing murder of the deceased persons.
(vii) The learned trial court has committed a serious error by not appreciating the prosecution evidence in relation to respondent.
(viii) The respondent is equally liable for the murder of the deceased Jitendra Gaur, Pramod Verma and Firoz alongwith other co-accused person as a member of unlawful assembly.
(ix) The testimony of the eye witnesses i.e., PW-18 and PW19 along with the testimony of the Investigating Officer, PW- 25 have totally been discarded without taking into consideration the fact that PW-18 and PW-19 have stated that during the entire course of occurrence he was passive and did not try to inform any authority which indicates that he was also a member of the unlawful assembly who committed the murder of three persons
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2025:JHHC:13144 and, therefore, the impugned judgment of acquittal is perverse and, as such, not sustainable in the eyes of law, hence fit to be set aside Argument advanced on behalf of Gullu Alam @ Gulzar Alam /respondent in Acquittal Appeal No.12 of 2010
19. Mrs. Jasvindar Mazumdar, learned counsel for the respondent- Gullu Alam @ Gulzar Alam, has taken the following ground in support of her case :-
(i) She has submitted that the learned trial court has rightly acquitted the respondent-Gullu Alam @ Gulzar Alam because only one witness i.e., Bijay Prasad PW-18, has stated that he had seen the accused outside the quarter of Guddu Alam talking over his mobile phone, though, it has come in evidence that several persons of the locality had gathered at the place of occurrence.
(ii) The other witness, who also claims himself to be the eye witness, i.e., Kundan Singh PW-19, did not identify him in the dock as the person who was standing outside the room and was talking over his mobile.
(iii) One Pathakji, who was accompanying PW-18 and PW-19 to the place of occurrence, told them that he is brother of Guddu. However, Pathakji has not been examined in this case.
(iv) Learned counsel, based on the aforesaid grounds, has
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2025:JHHC:13144 submitted that the learned trial court has rightly acquitted that respondent-Gullu Alam @ Gulzar Alam and no interference is required in the impugned judgment.
Analysis
20. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment.
21. We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits.
22. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned trial Court.
23. In this case the prosecution has examined altogether 25 witnesses.
PW 1- Alok Kumar Rai, who is a Scrap Dealer, is a hearsay witness. He has stated that the occurrence is of 03.09.2009. He was in the shop of Raja Khatik where Guddu Ansari had come and had talked to Jitendra Khatik and Firoz was also there. He has further stated that at 7:00 PM, Firoz, Pramod and Jitendra had gone on a motorcycle after informing Raj Khatik. He stated that on 04.09.2009 he got news that
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2025:JHHC:13144 Jitendra, Pramod and Firoz are missing. Thereafter, he went to the shop of Raj Khatik but they were not there. He has stated that he has talked to Raj Khatik on phone and he got an information that near Galfabari P.S., three dead bodies have been recovered. He reached to the place of occurrence where the dead bodies of Jitendra, Pramod and Firoz were lying. At paragraph-4 he has stated that he put the signature on the seizure list with respect to seizure of two boras (bags). At paragraph-9 he has stated that the dead bodies were lying in Nalla and further at paragraph 11, he has stated that he had not seen the occurrence.
PW 2-Pramod Rawani is the villager. He is also a hearsay witness. In his testimony he has stated that he came to know about the occurrence on 04.09.2009. He has stated that one known person namely Pathak Ji informed him that Guddu, Neeraj and 3 unknown persons murdered three persons and thrown the dead bodies in Rajpura Colliery nala. At paragraph-3 he has stated that he went to see the dead bodies and dead bodies were lying in the nala and on seeing their faces he could identify them as Jitendra, Pramod Verma and Firoz. At paragraph-4 it has been stated that Raja Khatik had given his statement at the place of occurrence and on that statement this witness had put his signature which is marked Exhibit- II. At paragraph-6 he has stated that he is known to
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2025:JHHC:13144 Raja Khatik from childhood but he is not related to him.
PW 3- Devendra Kr. Chourasiya is a hearsay witness. He has stated that on 04.09.2009 he got a call from Raja Khatik who asked him about Jitendra but he told him he doesn't have any information regarding the same. He has further stated that he went to Raja Khatik's house and thereafter went in a Maruti car to search Jitendra and on the way, it was informed that Neeraj, Guddu and Firoz had taken Jitendra and Pramod on motorcycle. At paragraph -3 he has stated that he went to the house of Neeraj and Guddu at Darfarbadi but they were not at home and there one Pathak Ji told Raja Khatik that he saw the murder of three persons and that murder has been done by Guddu, Neeraj and his associates and dead bodies are thrown in Rajpura Colliery nala. He has further stated at paragraph - 4 that he found the dead bodies at Rajpura Colliery nala. He has put his signature on the inquest report of Jitendra and Firoz. At paragraph-6 he has deposed that he had not seen the accused and not in a position to identify them. He has further deposed that there was rumour that murder had taken place due to one girl.
PW 4- Tappu Pandey is a villager. He has stated that Jitendra was seen with Pramod, Firoz and two unknown persons at Betel shop. At paragraph-3 he has stated that he went in search of Jitendra with Raja Khattik and on the way at
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2025:JHHC:13144 Shivlibadi they met with Pathak Ji who informed to Raja Khatik that Neeraj, Guddu and his associate have murdered three person's and dead bodies were thrown in Rajpura colliery nala. He went to Rajpura Colliery nala and saw the dead bodies and has put signature on the inquest report of Pramod. He has deposed at paragraph-5 that people were talking that reason behind the occurrence is a girl. He identified Guddu Alam who was sitting in the car with Firoz and he claims to identify the other accused who is not present in the court. He did not identify Gulzar Alam, Md. Sajjad Qurashi and Md. Sonu.
PW 5- Md. Sabir who is the co-villager and claims to be the eye witness, has stated at paragraph-1 that he heard the noise of firing from Guddu's quarter and Guddu, Sajjad and Neeraj used to live in Hasimulla's quarter. He has further deposed that he had seen revolver in the hand of Sajjad and Sajjad gave him threatening to get down. He saw from the window that 5-6 persons were taking big stones to that quarter. Noise was coming to save. He also heard the voice of Guddu saying "maro sallo ko". At paragraph-3 he has deposed that Sajjad knocked his door and asked for water and Neeraj and Chotu were also there with Sajjad. He identified Guddu, Gullu by name and Sajjad by name and face and didn't identify Sonu. He has stated at paragraph-7 that he did not
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2025:JHHC:13144 see Guddu but heard his voice as Guddu is known to him from his childhood.
PW 6- Salauddin is also Co-villager and claims to be the eye witness. He has deposed that he heard the noise of firing from the house of Guddu and also heard the noise of bachao bachao. He opened the door and saw that Guddu was armed with pistol and was threatening people. On the very next day, he came to know that three persons have been murdered in the house of Guddu. He has stated that he identifies Guddu. This witness has stated at paragraph-6 that the second day he left about 6 and came back about 5:30 and he is a hearsay.
PW 7- Guram Rasool is also a co-villager and claims to be the eye witness. He has stated that he heard the noise of firing from the house of Guddu and also the noise of bachao bachao. At paragraph-2 he has stated that Guddu was giving threatening to people. He has stated that next day he came to know about the three murders. He has also stated that next day he went to Guddu's quarter and saw bloodstains.
PW 8- Zia-ul Hussain is a co-villager. He has deposed that the occurrence is of 2009 during the month of Ramzan and next day he got information that near his house three people have been killed. He has deposed that later he got to know that the dead bodies were lying in nala near Rajpura. The house in which the occurrence took place has been
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2025:JHHC:13144 occupied by Guddu, Sajad, Neeraj and others. He has stated that he went to the house of Guddu on 4th where he found pital khokha (empty cartridges) and revolver. The IO had seized the said articles in which he has signed which is marked as Exhibit 5. The Khokha which was recovered from the house of Guddu has been siezed by the police in which he has also signed has been marked as Exhibit 6. He further deposed that it is the same Khokha which has been Recovered from the house of Guddu. He has further stated that Guddu and Sajjad was brought to the place of occurrence by the police and he had also gone there after hearing hulla and on the indication of Guddu and Sajjad loaded katta was recovered for which seizure list has been made by the police and he has signed on the carbon copy of the said list. At paragraph-8 he has deposed that the above two accused had taken the police to khadiya and on their indication thela (cart) was recovered from water and in front of everyone the accused person said that the dead body was carried on the thela (cart) to nala near Rajpura. He has also deposed that blood stains were found in the house which was occupied by Guddu. This witness identified Guddu, Sajad and Sonu who were present in court and he even recognizes Gullu. He has deposed at paragraph- 20 that from the place of occurrence to the place where the dead bodies were thrown, there was blood stains on the road. He has not counted how many blood stains were there but it
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2025:JHHC:13144 must be in 10-20 spots. The blood stains were not seized by the police in front of him. He has further deposed that he has not seen the murder. Neither he saw how the dead bodies were taken nor he knows whether the dead bodies were taken in thela (cart) or something else.
PW 9- Md. Eklak is co-villager. He has deposed that the occurrence took place in the month of Ramzan in the year 2009. When he got up in the morning, he got the information that murder has taken place in the house occupied by Guddu. He has further stated that he saw Guddu, Sajad, Sonu, Chotu in that house and everyone was cleaning the house by water and painting was going on. He knows all the accused. He didn't go inside the house where the occurrence took place there is one door in the house and everything was visible from outside only. The house was cleaned by 7:30 and painting work was going on. He has seen from the distance of 10 feet that the accused persons were cleaning and painting the house.
PW 10- Md. Idris is also a co-villager. He has deposed that the occurrence is of last year during the month of Ramzan. He has stated that Guddu has forcefully taken the house and from the last 12 to 14 months he has been forcefully staying there. The next day he heard that three persons have been murdered in his house. He went to the
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2025:JHHC:13144 place of occurrence and everywhere there was blood spots and the place was crowded. He recognized Guddu. He has deposed that on the date of occurrence he was working in Rajpura. His place is half km away from the place of occurrence. He reached the place of occurrence at 10:30. He has stated that except the Stains of blood he didn't see anything.
PW 11- Md. Asgar Qureshi is a co-villager. He has deposed that Police had come to the place of occurrence on the other day and he has also gone there and from the place of occurrence police had seized one khokha and made seizure list on which he has signed. He has further stated that on next day police came to the place of occurrence with forensic team and seized hair, blood stains from the wall and one steel jug and he signed on the seizure list. He has further deposed that after 12 to 14 days of occurrence Guddu and Sajjad came and on their indication, revolver was recovered which was seized on which he has signed. Police took Guddu and Sajad near the talab and on their instruction thela (cart) was recovered and was seized by the police. The khokha which was recovered was also seized and which he has signed. He recognized all the accused except Sonu.
PW 12- Mina Khatoon is a co-villager. She has deposed that the occurrence is of the year 2009. She heard the noise of gunshot from the house of Guddu. She further deposed that she came out of the house, Guddu and Husuru waived pistol
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2025:JHHC:13144 on her and threatened to go away whereafter she fled away due to fear. She has also deposed that she came to know that three persons have been murdered in Guddu's house. She identified Guddu and Husuru. She identified both the persons by their face and voice.
PW 13- Simon Nirsa is also co-villager. She has deposed that the occurrence took place in the month of Ramzan 2009. She heard the sound of gunshot from house of Guddu and on hearing that she came out and saw Guddu and Husuru standing outside. But both of them asked her to go inside and she went inside. She deposed those three persons has been murdered in the house of Guddu. She identified Guddu and Husuru. She deposed that she has weak eyesight and not in the position to see in the night. She deposed that she identified both the accused persons from their voice as she knew them from childhood.
PW 14- Sabra Khaton, who is co-villager, has deposed that the occurrence took place in the month of Ramzan 2009. She heard the gunshot from house of Guddu. She further heard the noise of 'bachao bachao'. She has further deposed that next day she heard that three persons have been murdered in the house of Guddu.
PW 15- Salim Khan has deposed that the occurrence took place in the month of Ramzan of 2009. He further
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2025:JHHC:13144 deposed that when he was returning home, he saw Guddu, Husuru, Niraj and two unknown persons threatening the people who had gathered there and then he returned home. At paragraph-4 he has deposed that next day he heard that three persons have been murdered in the house of Guddu and the three dead bodies are lying in the drain. He had stated before the police that Guddu, Husuuru and Niraj were forcing people to go away. At paragraph -8 he has stated that he had not seen the occurrence. He came after the occurrence and heard next about the murder.
PW 16- Bindeshwari Pandey @ Raju Pandey has stated that the occurrence took place on 03.09.2009 and in the morning of 04.09.2009 Raja Khatik called him Saying that this son Jitendra, driver Pramod and Firoz who had gone with Guddu and Niraj have not returned yet and the mobile is also switched off. He has deposed that he along with five persons including Raja Khatik went in search of these three persons and went to the house of Niraj and Guddu but both were not at home. Thereafter they met D.N Pathak, Kundan and Vijay. All the three have informed him that when they were crossing the room, they heard the hulla and on hearing hulla they went inside and saw that all three persons were being assaulted by Guddu, Sajad, Niraj, Sonu, Rinku and Chotu and thereafter, all the three have been thrown in the drain of Rajapura Colliery. He deposed that all the three dead bodies were lying
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2025:JHHC:13144 in the Rajpura Colliery and identified as Jitendra, Parmod and Firoz. He has put his signature on the seizure memo of piece of saari and seized bora and also put signature on the cartoon. He also put his signature on the inquest report of Firoz. He has deposed that murder has taken place due to love affair.
PW 17- Awedesh Paswan is a co-villager. He has deposed that on 04.09.2009 Raja Khatik called him and said that Jitendra and Pramod went with Niraj Firoz and Guddu. They have not returned and also not picking up the phone. He has deposed at paragraph-7 that he couldn't identify the accused persons. He has also denied to have seen the occurrence with his own eyes.
PW 18- Bijay Prasad is a co-villager and claims to be the eye witness to the occurrence. He has deposed that he heard the noise of 'bachao bachao' from Guddu's quarter. On query, people told him that Guddu was assaulting someone in his quarter and on instructions of Pathak Jii they all went inside and saw a person lying on the ground and four-five persons were assaulting two persons. Sajad was assaulting with danda, Niraj with Hockey stick, Sonu with rod, Chotu Ansari with rod and Rinku with stone. Guddu was armed with pistol and making hulla of 'maro maro' and on that two persons fell on the ground and died on the spot. Guddu who was armed with pistol, threatened them and he saw the blood stains at
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2025:JHHC:13144 the place of occurrence. Next morning he met Raju Pandey and Raja Khatik and both of them told him that Raja Khatik's son is missing then he told him about the occurrence. He has three criminal antecedents. At paragraph-13 he has deposed that after the occurrence he had not gone to the police and later on he gave his statement to the police but doesn't remember when. He has stated that the occurrence took place in the quarter of Guddu and the veranda is on the front side. There was blood stain in the veranda.
PW 19- Kundan Singh is also a co-villager. He has deposed at paragraph 1 that the occurrence is of about four- five month back during the month of Ramzan at around 10-11 o'clock, he was with Pathak Ji and Bijay Prasad. When he was coming back to the house of Pathak Ji, he heard the noise of Bachao Bachao' at Deepak Bhawan and among all the voices one voice was of Guddu. When they went inside, one person was already lying on the floor with blood oozing and two persons were being assaulted in veranda. Niraj was assaulting with hockey, Guddu was carrying pistol and was saying "maro maro" and one person was hitting with lathi that was little fat whose name is not known but he can recognise him after seeing. And one person was hitting by rod due to which they fell down and when they tried to stop them, they threatened them. At Para 6- he testified that a man was talking on phone outside the house, Pathak Ji told he is brother of Guddu. At
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2025:JHHC:13144 Para 7- he had stated that they went home after getting threatened and that's why they didn't inform the police. Para 8- Next day morning Khatik Jii met with Pathak Jii and he was also there and Khatik Jii informed that Guddu and Neeraj had taken his son and 2 other persons but thereafter they didn't return and thereafter he informed about the night occurrence and dead bodies were taken to Rajpura. Para 9- Identifies Guddu, Identified Sajjad armed with Danda but not by name, identified Sonu with rod but couldn't identify Gullu. Para 14- He deposed that Pathak Ji is the leader. Para 18- Police didn't do TIP. Para 19- He met all the four persons in jail. Para 24- Stones were lying on the place of occurrence but not the bricks. Blood stains were there. Para 25- He deposed that he does not know the reason behind the occurrence.
PW 20- Arun Kumar Singh, Sub Inspector. He has deposed that he had prepared the inquest report of Jitendra, Firoz and Pramod. He also prepared seizure list of bora, saree and Hero Honda.
PW-21 Pramod Kumar, Sub- Inspector. He has deposed that on the statement of Guddu a country made pistol was recovered from the hip of garbage. He had prepared the seizure list of Bullet. He further deposed that on the confession of other co-accused person a thella/ cart has been recovered which was used for the transportation of the dead bodies and he prepared the seizure list.
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2025:JHHC:13144 PW- 22 Sakaldeep Kaur @ Raja Khatik. He is the informant of this case. He has deposed that at about 8:30 pm on 03.09.2009, the informant was sitting in his godown with his deceased son namely Jitendra, neighbour Alok and deceased driver of 407 truck Pramod, car driver Ram Briksh and others. At paragraph-2 he has deposed that Firoz, Guddu and Neeraj came and called Jitendra, initially Jitendra refused to go but subsequently took Rs. 20,000/- from office and went with them. Pramod also went with them and both went on the motorcycle. At paragraph -3 he deposed that he couldn't reach out to Jitendra but truck driver Yadav talked to Jitendra and Jitendra said that he will return within 10-15 minutes but he didn't return. Thereafter, informant went back and slept. He has further deposed at paragraph-4 that Rambriksh came in the morning and called Jitendra and he informed that Jitendra didn't return back. Then he went to Firoz house but his wife informed that Firoz didn't come back. He tried calling Pramod and Firoz also but their phones were switched off. He deposed that informant along with Raju Pandey, Awadesh Paswan, Tappu Pandey, Pramod Rawani went to Neeraj's house in Shivli badi but Neeraj was not there then they went to Guddu's house and there also they were not there. He deposed that thereafter they met with Kundan and Bijay Pathak and asked about Jitendra then Kundan and Bijay told him that last night when they were crossing the Samudaik
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2025:JHHC:13144 Bhawan they heard the noise of bachao bachao and on hearing that noise they went and inside and saw that all three people were being assaulted by Guddu, Neeraj, Sajjad, Gullu, Rinku and Chotu and Guddu had threatened them to flee away. It was further informed that the dead bodies were thrown in the drain of Rajpura Colliery. At paragraph-9 he has deposed that mobile of Jitendra, Rs. 20,000 and motorcycle was missing but subsequently motorcycle was recovered. He has identified all the three accused persons. He has deposed that he has two-three cases against him.
PW-23 Dr. Shailendra Kumar is the doctor who had conducted post-mortem on the dead bodies of the deceased Pramod Verma, Jitendra Gaur and Firoz Khan.
Following antemortem wounds were found on the person of the deceased Pramod Verma: -
1. Lacerated wounds: -
a. ¾" x ¼" x bone deep near out angle of left eye. b. ½" x ¼" x scalp deep on the left side upper portion of forehead.
c. ½" x ¼" x scalp deep on the left parietal region of head. d. ½" x ½" x scalp deep on the right parietal region of head.
Superficial to deep post mortem burn injuries were found all over the body of the deceased.
II. On dissection: -
Blood and blood clots were found all over the skull
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2025:JHHC:13144 underneath the scalp. Frontal bone, parietal bone, temporal bone and Petrus bone were found fractured into pieces on both sides of the head. Brain and meninges were found lacerated. Blood and clots were found all over the cranial cavity. Heart and bladder were empty. Stomach contained about 200 grams of chewed roti and meat with intense alcoholic smelling. Other internal organs were pale. Time Elapsed since death 12 (plus minus) 6 hours.
Cause of death was instantaneous due to aforementioned hard and blunt force injuries on head and brain and can be caused by rod, lathi and stones.
Injuries found on the dead body of deceased Jitendra Gaur:-
Following antemortem wounds were found on the person of the deceased: -
1. Lacerated wounds: -
a. 2" x 1" x brain deep on the light parietal region of head. Brain matter was found coming out of the wound. b. 1" x ½" x scalp deep on the middle of forehead.
Closed fracture on the both side of cheek bones and on the left side lower jaw.
Bermeo epidermal post mortem burn injuries were found all over the body of the deceased.
On Dissection: -
Blood and blood clots were found all over the skull
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2025:JHHC:13144 underneath the scalp. Parietal bone and temporal bone and Petrus bone of skull on the right side were found having linear fractures. Brain and meninges were found lacerated. Blood and clots were found all over the cranial cavity. Heart and bladder were empty. Stomach contained about 200 grams of pasty food with intense alcoholic smelling. Other internal organs were pale. Time Elapsed since death 12 (plus minus) 6 hours.
Cause of death was due to aforementioned injuries on head and brain caused by hard and blunt objects like rod, lathi and stones.
Following antemortem wounds were found on the person of the deceased Firoz Khan: -
1. Incised wounds: -
a. 1½" x ½" x scalp deep three incised wounds of the same size were found closely situated to each other on the right parietal region of head.
b. 2" x ½" x scalp deep on the middle of forehead. c. 1" x ½" x scalp deep on the left side of fore head. d. 1" x ¼ " x bone deep just below the left eye. e. 2" x ½" x bone deep on the middle front of chin. f. ½" x ½" x muscle deep on the upper portion outer aspect of left eye.
II. Incised wound 5" x ¾" muscle deep on the upper portion front of neck from side to side.
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2025:JHHC:13144 Superficial to deep post mortem burn injuries were found all over the body of the deceased.
On Dissection: -
Blood and clots were found all over the skull underneath the scalp. Frontal bone, Parietal bone and occipital bone of skull were found having linear fracture on both sides. Brain and meninges were found lacerated. Blood and clots were found all over the cranial cavity. Heart and bladder were empty. Stomach contained about 200 grams of chewed roti and meat with intense alcoholic smell. Other internal organs were pale.
Time Elapsed since death 12 (plus minus) 6 hours. Cause of death was instantaneous due to aforementioned injuries on head and brain caused by heavy sharp cutting weapon.
PW-24 Mazoor Alam is a co-villager. He has deposed that occurrence is of 10 to 10:30 pm in the month of Ramzan in 2009. He heard the noise of 'bachao bachao' from Guddu's house and also heard the gun shot noise but he didn't come out of the house. Next day he came to know that three persons have been murdered. He identified the accused persons.
PW-25 Raj Narayan Singh is the I.O. of the case. He has deposed that on 04.09.2009 he got an information that three unknown burned dead bodies were lying near the Rajpura Colliery. He entered Sanaha and went for verification with
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2025:JHHC:13144 other police persons. The informant told him that he is resident of Kinwa Dhanbad that Jitendra his son, Pramod and Firoz have been murdered and their half-burnt bodies have been thrown in drain. He recorded the fardbeyan of Sakaldeep and drawn Formal FIR and on his instruction inquest report was prepared by Arun Kumar Singh. He recorded re-statement of informant. He has deposed at Para-8 that dead bodies were sent for post mortem and videography and photos of place of occurrence was taken. CD of videography is marked as Exhibit with objection.
He has deposed that the first place of occurrence was Mukhiya Mahala house of Md. Idrish in Shivlibadi and the same was illegally occupied by Guddu Alam. He has further deposed that blood stains were found on the door and wall of the room, attempts were made to rub the blood stain, floor was cleaned one fired cartridge was recovered. He has also deposed about the second place of occurrence, i.e., drain of Rajpura Colliery wherefrom the dead bodies were recovered. The blood stain sample was sent to FSL and no blood samples were taken from the road. Gullu was arrested and finger prints were taken and sent for examination. Guddu and Sajjad were taken on police remand who confessed their guilts and on their confession pistol with cartridge, thella and motorcycle were recovered.
Another accused Naushad Ansari Seikh Khan and others
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2025:JHHC:13144 assaulted the witness Vijay Prasad and gave threatening to other witnesses namely Ziaul, Sabir and Manjur. At paragraph-38 he has deposed that it has come in the light that Neeraj was having an affair with Chandni and Sonu was having affair with elder sister of Chandni and deceased Firoz was also having an affair with Chandni and due to that CDR Report of Chandni was taken out and it was found that there were phones calls from Neeraj, Firoz and Sonu in between 01.09.2009 to 03.09.2009. Chandni has not been made witness in this case. He has deposed that another case was registered for threatening and assaulting the witnesses. He has stated that blood and hair was of human being. No articles of whitewash have been recovered from Guddu house.
24. In the aforesaid background, first we are to going to adjudicate the Cr. Appeal (DB) 632 of 2010 and Cr. Appeal (DB) 687 of 2010.
Cr. Appeal (DB) 632 of 2010 and Cr. Appeal (DB) 687 of 2010
25. This Court, after having considered the testimony of the witnesses, the exhibits including the postmortem reports of the deceased and the inquest reports, is now proceeding to examine the submission advanced on behalf of the parties in order to consider the legality and propriety of the impugned judgment.
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2025:JHHC:13144
26. The ground has been taken that the conviction is based upon the evidence of eye witnesses without having been fully corroborated by the other evidences and further no independent witnesses have come forward in support of the manner of occurrence.
27. Per contra the learned counsel for state has contended that the eye witnesses since have made meticulous description of the occurrence, which has been corroborated by medical evidence and other witnesses, as such the evidence of eye witnesses is to be fully relied upon while proving the charge against accused persons.
28. In the aforesaid context it requires to refer herein the settled proposition of law about that evidentiary value of the testimony of eyewitness.
29. An eyewitness is described as the one who has directly seen the crime taking place having a direct connection with the accused committing the offence through direct evidence. In the judicial system, eyewitness testimony plays an important role for maintaining justice. In all criminal trials, it is necessary to reconstruct facts from past events to determine the fate of the accused. The details of such events are provided by the eyewitness which helps in reconstructing the incident. This type of testimony can be particularly influential when there is a lack of other supporting evidence or when it
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2025:JHHC:13144 contradicts other evidence, offering a unique perspective on the events in question.
30. The witness's memory is one of the most significant variables that can affect how accurate their testimony is to rely upon. Memory is a reconstruction of past experiences based on the information recorded at the time and any subsequent processing or manipulation of that information. Thus, the accuracy of eyewitness testimony can be affected by various factors, such as the witness's emotional state, prior expectations, biases, and level of attention at the time of the incident; additionally, the way the witness is questioned or interviewed about the event can also have an impact.
31. Eyewitnesses are the most trustworthy witnesses in criminal cases according to the law. As established by the Hon'ble Apex Court in the case of Krishna Ram v. State of Rajasthan [Krishna Ram v. State of Rajasthan, 1993 SCC (Cri) 387], the veracity and reliability of an eyewitness statement remain unaffected even if the statement results in the conviction of some accused parties and the acquittal of others.
32. The Hon'ble Supreme Court ruled in the case of Pratap Chauhan v. Ram Naik (2001) 9 SCC 266, that an eyewitness statement cannot be disregarded due to erroneous connotations before carefully and cautiously reviewing the
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2025:JHHC:13144 evidence. The court further ruled that an eyewitness's testimony cannot be disregarded due to slight discrepancies.
33. Thus, from the aforesaid it is evident that the admissibility of eyewitnesses in criminal trials are of utmost importance where, in the cases referred above, it is stated that the statement of the eyewitnesses are admissible to be presented in the court irrespective of their age, or if there is the only sole witness for the case, so many conviction had been done on the basis their testimony.
34. The learned counsel for appellant further contended the issue of inter-se contradiction among the prosecution witnesses.
35. In response to the contention of the appellants, it is pertinent to emphasize that it is a settled legal proposition that not every discrepancy or contradiction matters for assessing the reliability and credibility of a witness, unless the discrepancies and contradictions are so material that it destroys the substratum of the prosecution case.
36. Law is settled in this regard that merely because there is some contradiction and discrepancies in the testimonies, the same cannot be enough to vitiate the prosecution story, as has been held by the Hon'ble Apex Court in the case of Mukesh Kumar v. State (NCT of Delhi), reported in (2015) 17 SCC
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2025:JHHC:13144 694, wherein, at paragraph-8, it has been held as under: --
"8. ---- minor discrepancies, embellishments and contradictions in the evidence of the eyewitnesses do not destroy the essential fabric of the prosecution case, the core of which remains unaffected. Even if we have to assume that there are certain unnatural features in the evidence of the eyewitnesses the same can be reasonably explained on an accepted proposition of law that different persons would react to the same situation in different manner and there can be no uniform or accepted code of conduct to judge the correctness of the conduct of the prosecution witnesses i.e. PWs 1 and 2. The relation between PWs 5 and 6 and PWs 1 and 2 and the deceased, in our considered view, by itself, would not discredit the testimony of the said witnesses. There is nothing in the evidence of PWs 1 and 2 which makes their version unworthy of acceptance and their testimony remains unshaken in the elaborate cross-examination undertaken."
37. Likewise, the Hon'ble Apex Court in the case of Shyamal Ghosh v. State of West Bengal, reported in (2012) 7 SCC 646, wherein, at paragraphs-46 & 49, it has been held as under:
"46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW 8, PW 17 and PW 19. Similarly, there is some variation in the statement of PW 7, PW 9 and PW
11. Certain variations are also pointed out in the statements of PW 2, PW 4 and PW 6 as to the motive of the accused for commission of the crime. Undoubtedly,
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2025:JHHC:13144 some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution. 49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.
38. In the backdrop of aforesaid settled position of law now we are adverting to testimony of the eyewitness in order to find out that whether the testimony of eyewitnesses is reliable and sufficient enough to prove the charges beyond reasonable doubt against the appellants.
39. From the testimonies of the prosecution witnesses as referred hereinabove it is evident that Bijay Prasad, PW 18 and Kundan Singh, P.W 19 have claimed themselves to be the eye witness of the alleged occurrence. Both of them have stated that the occurrence took place about 4-5 months ago, it was period of Ramjan. These witnesses have stated that at about 10.00 to 11.00 PM they were present in the house of Pathak Jee and Pathak Jee was getting his house constructed. They along with Pathak Jee had gone to the house of Md. Mukhtar, supplier of sand and stone chips. Mukhtar was not present in
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2025:JHHC:13144 his house.
40. While they were returning to the house of Pathak Jee, when they reached near community hall, they heard cry of help coming from the quarter of Guddu, crowd had gathered there. On query, people said that Guddu(appellant herein) was assaulting some body inside his quarter. At the instance of Pathak Jee, they went inside. They saw a person lying on the ground and 4-5 persons assaulting two persons. They have identified the accused, who were assaulting the unknown persons as Sajjad @ Husuru, Niraj, Sonu, Chotu Ansari and Rinku. Guddu was present there armed with pistol. They have further stated that both the victims fell on the ground and died at the spot. They have further stated that Guddu threatened them to go away from there on which they went away. Bijay Prasad, PW 18 has stated that Gullu was standing outside his house and talking to somebody on phone. Kundan Singh-PW 19 has also stated that one person was talking over mobile phone outside the house and Pathak Jee told him that he was brother of Guddu.
41. On the next date, Raja Khatik met Pathak Jee and Bijay Prasad, P.W. 18. They told him about the occurrence. Both these witnesses have identified the accused persons in the dock but Kundan Singh, P.W. 19 has failed to identify the accused Gullu. Both these witnesses have been cross
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2025:JHHC:13144 examined at length by the defence but they remain intact in their testimonies.
42. It is evident from the aforesaid that these eyewitnesses had stated the alleged occurrence in detail and nothing contrary has come in their cross-examination. Further their testimonies have been substantiated by the testimony of other prosecution witnesses like Md. Sabir @ Lal Babu, P.W. 5, Salauddin, PW 6, Ghulam Rasool, P.W. 7. Md. Eklakh, P W. 9, Mina Khatoon, P.W. 12, Saimun Mishra, P.W. 13, Sabra Khatoon, P.W, 14, Salim Khan, P.W. 15. as all have stated that the first place of occurrence is the quarter, which was under
occupation of Guddu Alam. It has come in evidence that the quarter belonged to Md. Idris but Guddu Alam had forcibly occupied it.
43. Md. Idris, P W. 10, the actual owner of the quarter has stated that Guddu Alam had occupied his quarter by breaking open the lock about a year ago. He has stated that when he went to the place of occurrence on the next date, he saw blood stains at various places. Ghulam Rasool, P. W. 7, Md. Eklakh, P.W. 8 and Md Idris, P.W. 10, all have stated that when they went to the place of occurrence, they saw blood stains and blood spots all over the quarter. There is nothing in their cross examination to doubt their veracity as such the prosecution has been able to show that the first place of occurrence is
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2025:JHHC:13144 quarter of Md. Idris, which was under unauthorized occupation of Guddu Alam and it is here that the deceased Jitendra Gour, Pramod Verma and Firoz were murdered.
44. Further, as per testimony of P.W.5 it is evident that he heard the noise of firing from Guddu's quarter and Guddu, Sajjad and Neeraj used to live in Hasimulla's quarter. He has categorically testified that he had seen revolver in the hand of Sajjad and Sajjad gave him threatening to get down. He further stated that noise was coming to save. He also heard the voice of Guddu saying "maro sallo ko". He has stated at paragraph-7 that he did not see Guddu but heard his voice as Guddu is known to him from his childhood. Thus, evidence of P.W.18 and 19 has been substantiated by the testimony of P.W.5..
45. PW 6- Salauddin has deposed that he heard the noise of firing from the house of Guddu and also heard the noise of bachao bachao. He opened the door and saw that Guddu was armed with pistol and was threatening people. Thus, by the testimony of this witness , the testimony of P.W.5, P.W.18 and P.W.19 has fully been corroborated.
46. PW 7- Guram Rasool has stated that he heard the noise of firing from the house of Guddu and also the noise of bachao bachao. At paragraph-2 he has stated that Guddu was giving threatening to people.
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47. Thus, from the aforesaid testimonies of P.W.5, 6 and 7 it is evident that the part of testimony of the eyewitnesses P.W.18 and 19 has fully been substantiated and further the first place of occurrence i.e. unauthorized quarter of Guddu has also been established.
48. Further the doctor who had conducted post-mortem on the body of deceased persons had categorically stated that injuries upon the body of the deceased persons may cause by hard and blunt substances. Further the P.W.18 and 19 has specifically stated that accused persons assaulted the deceased with lathi and Rod, therefore the testimony of the eyewitnesses have also been fully substantiated by the medical evidence.
49. It needs to refer herein that PW 12- Mina Khatoon has also stated that she heard the noise of gunshot from the house of Guddu. She further deposed that she came out of the house, Guddu and Husuru waived pistol on her and threatened to go away whereafter she fled away due to fear. She identified both the persons by their face and voice.
50. PW 13- Simon Nirsa has stated that she heard the sound of gunshot from house of Guddu and on hearing that she came out and saw Guddu and Husuru standing outside. But both of them asked her to go inside and she went inside. She deposed those three persons has been murdered in the house
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2025:JHHC:13144 of Guddu. She deposed that she identified both the accused persons from their voice as she knew them from childhood
51. Thus, from the testimony of the P.W.12 and 13 it is also established that testimony of P.W.18 and 19 is free of doubt as their statement fully corroborated by the testimony of these witnesses.
52. Thus, on the basis of aforesaid discussion and in the light of settled position of law this court is of the considered view that the contention of the learned counsel for the appellants that the conviction is based upon the evidence of eye witnesses without having been fully corroborated by the other evidences is not fit to be accepted.
53. The, learned counsel for the appellants has further contended that no concrete motive has been brought forward by the prosecution and in the absence of any motive it is not safe to rely upon the evidence of witnesses.
54. Per contra the learned counsel for the state respondent has contended that so far question of motive is concerned, it has come during investigation that two persons had love affairs with one girl and due to that reason, the murder has been committed, so it cannot be said that motive is absent in the case at hand.
55. In the aforesaid context it needs to refer herein that it is
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2025:JHHC:13144 the well settled connotation of law that when there is direct evidence of an acceptable nature regarding the commission of an offence, the question of motive cannot be a vital factor which vitiates prosecution case.
56. In the case of State of A.P. v. Bogam Chandraiah, (1986) 3 SCC 637 the Hon'ble Apex Court has categorically observed that when there is direct evidence of an acceptable nature regarding the commission of an offence the question of motive cannot loom large in the mind of the court. For ready reference the relevant paragraph is being quoted as under:
"11. ----- Another failing in the judgment is that the High Court has held that the prosecution has failed to prove adequate motive for the commission of the offence without bearing in mind the well settled rule that when there is direct evidence of an acceptable nature regarding the commission of an offence the question of motive cannot loom large in the mind of the court. Lastly, we find that the High Court has, evolved a theory of its own, without there being any material to support it, and premised that the occurrence must have taken place during darkness, and subsequently the respondents must have been implicated on account of suspicion."
57. Further the Hon'ble Supreme Court in the case of Kumar Vs. State, represented by Inspector of Police (2018) 7 SCC 536, wherein at paragraph 33 it has been held as under:
"33. Coming to the other aspect of the case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the
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2025:JHHC:13144 deceased during a drama at a village festival. Generally, in the case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance.----"
58. In the instant case, it is evident from the testimony of P.W.25 wherein he has stated that Neeraj was having an affair with Chandni and Sonu was having affair with elder sister of Chandni and deceased Firoz was also having an affair with Chandni and due to that CDR Report of Chandni was taken out and it was found that there were phones calls from Neeraj, Firoz and Sonu in between 01.09.2009 to 03.09.2009.
59. Thus, from the aforesaid motive has been established but even if it is presumed that commission of crime of murder lacks motive or the same as alleged having not been corroborated in the testimony of witness the question arises that on this ground, can the entire prosecution story be disbelieved. In the aforesaid context the answer of this Court will be in negative, reason being that as discussed hereinabove that P.W.18 and P.W.19 are the eyewitness of the alleged occurrence who meticulously narrated the entire occurrence in the tune of the case of the prosecution. Therefore, taking in to consideration the ratio of the case rendered by the Hon'ble
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2025:JHHC:13144 Apex Court in the case of State of A.P. v. Bogam Chandraiah (supra), this court is of the view that contention of the learned counsel for the appellants that there is no concrete motive in the instant case and due to that case of prosecution will be vitiated is not fit to be acceptable.
60. It has further been contended by the learned counsel for the appellants that the vital witness, i.e., one D.N. Pathak, with whom the eye witnesses, i.e., PW-18 and PW-19, claim to have seen the occurrence, has not been examined and hence serious prejudice has been caused since he was the best person to disclose about the commission of crime.
61. Per contra learned counsel for the State has submitted that since the eye witnesses available on record have made meticulous description of the occurrence, which has been corroborated by medical evidence and other witnesses, as such non-examination of one of the eye witnesses will not cause any prejudice to the appellants.
62. In the aforesaid context it needs to refer herein that it is settled position of law that due to non-examination of one of the eyewitnesses/independent witness, the prosecution story will not vitiate in a case where the prosecution version is being corroborated by other eye-witness, as the case herein. Reference in this regard be made to the judgment rendered in Sambhu Das v. State of Assam, (2010) 10 SCC 374 :
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2025:JHHC:13144 "38.In our opinion, it is not necessary for the prosecution to examine every other witness cited by them in the charge-sheet. Mere non-examination of some persons does not corrode the vitality of the prosecution version, particularly, the witnesses examined have withstood the cross-examination and pointed to the accused persons as perpetrators of the crime. The trial court and the High Court have come to the conclusion that the evidence of PW 1 is trustworthy and reliable. We have also carefully perused the evidence of PW 1, whose evidence is corroborated by PW 8 and the post-mortem report issued by PW 6, we are convinced that the trial court and the High Court were justified in believing the testimony of PW
1."
63. Likewise, the Hon'ble Apex Court in the judgment rendered in Sarwan Singh v. State of Punjab, (2003) 1 SCC 240 held as under:
"13. As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad v. State (Delhi Admn.5) wherein this Court in para 12 observed: (SCC pp. 653-54) "12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW 7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and
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2025:JHHC:13144 repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh 6this Court observed: (SCC pp. 691-92, para 15) 'In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.' "
14. The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available -- if they are so, the prosecution should be able to prove the case with their assistance."
64. Thus, on the basis of aforesaid settled position of law and further taking in to consideration the testimony of the eyewitness i.e. P.W.18 and P.W.19 who have given details of the alleged occurrence is of view that the contention of the learned counsel for the appellants that due to non- examination of Pathak Ji, serious prejudice will be caused to the appellants is also not fit to be acceptable.
65. The learned counsel for the appellants while referring
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2025:JHHC:13144 various lacuna in the investigation like that the weapons alleged to be used in the commission of crime, i.e., Lathi, Rod etc. have not been recovered during investigation and as per I.O. one country made pistol has been seized but as per the testimony of the doctor, no firearm injury was found on the persons of any of the deceased.
66. Per contra the learned counsel for the state had submitted that since there are direct evidences in form of the alleged eyewitness i.e. PW.18 and P.W.19, therefore the lacuna in the investigation will not hamper the case of the prosecution.
67. Admittedly, in the instant case recovery of the lathi, rod etc. which has been used in the alleged commission of crime has not been recovered rather one pistol which was not used in alleged commission of crime has been recovered. However, the recovery of pistol will no way affect the prosecution case reason being that none of the witnesses has stated that deceased was shot by the bullet rather all the witnesses had unanimously stated that they had heard the sound of bullet and they had further stated that they saw the accused appellants, namely, Sajjad Quraishi @ Husuru and Guddu Alam with pistol in his hand by which the accused person was threatening other persons.
68. Admittedly, the non-recovery of the said lathi and rod
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2025:JHHC:13144 which was used in the alleged commission of crime is glance of the perfunctory investigation and in such circumstances the question arises herein that whether due to perfunctory investigation the case of the prosecution will be demolished.
69. In the aforesaid context there is no iota of doubt that it would have been certainly better if the investigating agency had recovered the lathi and rod alleged to be used in the alleged commission of crime, however, the failure of the investigating officer in recovering the said rod and lathi cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses. Reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Amar Singh v. Balwinder Singh, (2003) 2 SCC 518, the relevant paragraph of which is quoted as under:
"15. ----- In Karnel Singh v. State of M.P. it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav v. State of Bihar while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of
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2025:JHHC:13144 Bihar when this Court observed that in such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law- enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."
70. Likewise, the Hon'ble Apex Court in the judgment rendered in Dhanaj Singh v. State of Punjab, (2004) 3 SCC 654 at paragraph 7 held as under:
"7. As was observed in Ram Bihari Yadav v. State of Bihar if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice.
71. Admittedly in the instant case the Investigating Officer did not do some part of investigation, which he was required to do. But the faulty investigation made by the Investigating Officer does not prejudice the accused and cannot be fatal for the prosecution case. Illegality of Investigation is not material,
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2025:JHHC:13144 if the testimony of the eyewitness to the occurrence is true. The Hon'ble Apex Court in the judgment rendered in Dhanaj Singh v. State of Punjab (supra) has categorically observed that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The Hon'ble Apex Court has further observed that when the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version.
72. This Court on the basis of the aforesaid proposition of law as have been settled in the aforesaid judgments of the Hon'ble Apex Court and coming to the facts of the given case is of the view that the testimony of eyewitnesses cannot be said to be having lack of trustworthiness, rather, the testimony of an eyewitness goes to clarify that the attributability of each individual accused persons have been corroborated as per the prosecution version as recorded by him in the fardbeyan and as such there is no reason to consider the testimony of eyewitnesses to be not trustworthy as also for the further reason that their testimony has also
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2025:JHHC:13144 been supported by the other witnesses including doctor and Investigating Officer , therefore, the contention of the learned counsel for the appellant that due to defective investigation the case caused prejudice to the appellants is misplaced and fallacious.
73. After appreciating the rival submissions and settled legal position this Court thinks fit to revisit the factual aspects of the case in order to find out culpability of the present appellants and to ascertain that whether prosecution is able to prove the charges against these appellants beyond reasonable doubt.
74. Admittedly it is the case of homicide of three persons including the son of the informant and accordingly after investigation charge-sheet was submitted and consequently all the appellants/accused above named and one Gullu Allam @Gulzar were sent up for trial. The learned trial court vide order dated 30.04.2010 had convicted the appellants/accused for the offences aforesaid and acquitted Gullu Allam @Gulzar from all charges.
75. As per the FIR on 03.09.2009 at about 8:30 PM, Firoz along with two persons came to informant's godown and took away informant's son Jitendra and Pramod Verma the driver of the informant also accompanied them. When Jitendra and Pramod did not return home then on the next day, the
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2025:JHHC:13144 informant started looking for their whereabout and when he reached near Shivlibari, he came to know that three persons were murdered in Shivlibari club and their dead bodies were thrown in a drain near Rajpura Colliery. In order to conceal the identity of the deceased persons the accused persons had tried to immolate the corpse. The informant also came to know that Guddu, Niraj, Naushad Ansari, Husuru @ Sajjad, Chotu Ansari, Rinku Ansari and Gullu Ansari had murdered the deceased persons. The informant went to the place where the dead bodies were lying. He identified the dead bodies as that of his son, Jitendra, his driver Pramod and Firoz.
76. The trial court had appreciated the evidence of 25 prosecution witnesses and also material available on record. Out of 25 prosecution witnesses, two witnesses namely Bijay Prasad and Kundan Singh who claimed themselves as an eyewitness has been examined as P.W.18 and P.W.19 respectively and has given vivid details of the alleged occurrence. The learned trial Court found that the testimony of the said eyewitness fully corroborated with the testimony of other witnesses has convicted the appellants/accused.
77. This Court while answering the contentions of the parties in the preceding paragraph has already dealt with the testimony of the said eyewitnesses and found them reliable and trustworthy.
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78. It is evident from the record that Alok Kumar Rai, P.W. 1 and Sakaldeep Gour @ Raja Khatik, P.W. 22, informant both have stated that on 03/9/2009, they were present in the godown of the informant, when Guddu Alam(appellant herein) and Firoz(deceased) came there and Jitendra Khatik(deceased), son of the informant and Pramod Verma(deceased), driver of the informant went with Guddu Alam and Firoz. Tappu Pandey, P.W. 4 has stated that on 03/9/2009, he had seen Pramod, Firoz and Jitendra alongwith two other persons at Gansadih betel shop. He has identified the accused Guddu Alam as the person seen in the company of the deceased sitting in the car.
79. Thus from testimony of the aforesaid witnesses it is evident that appellant Guddu Alam was accompanied with the deceased persons.
80. Md. Sabir Lal Babu PW 5, Salauddin, PW 6 and Ghulam Rasool PW 7, have stated that they were present in their house When they heard gun shot coming from the quarter, which was occupied by Guddu Alam. They came outside their house. Md. Sabir @ Lal Babu-PW-5 had stated that he saw Sajjad standing outside the said quarter. Thereafter, he saw from his house that the accused persons were carrying big stones inside the quarter and cry of alarm of some persons came from there. He has stated that Niraj and Chotu were also present
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2025:JHHC:13144 with Sajjad @ Husru. On the next day, he came to know that three persons were murdered He has identified the accused Sajjad @ Husuru, Guddu Alam and Gulzar but has failed to identify the accused Sonu.
81. Salauddin, PW 6 has stated that when he came outside his house after hearing the gun shot, he saw the accused Guddu showing pistol and asking the residents to go inside. He has further stated that he heard the cry of alarm coming from the quarter of Guddu Alam. He has identified the accused Guddu in the dock.
82. Ghulam Rasool. PW 7 has stated that he came outside his house after hearing gun shot. Cry of alarm was also coming from the quarter of Guddu, Guddu was threatening the residents to go inside.
83. Thus, from testimony of these witnesses place of occurrence has fully been established and further they confirmed the presence of the accused persons especially Guddu and Sajjad Husru at the place of occurrence.
84. Mina Khatoon, P.W. 12 and Saimun Mishra, PW 13 both have stated that they were present in their house when they heard gun shot. The shot was fired in the house of Guddu. Mina Khatoon, P.W. 12 has stated that when she came outside, she saw Guddu and Husuru @ Sajjad waiving pistols
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2025:JHHC:13144 at the residents. She went inside out of fear She has stated that on the next day she came to know that three persons were murdered. She has identified Guddu and Husuru @ Sajjad in the dock. In her cross examination, she was acquainted with both the persons i.e. Guddu and Sajjad from their childhood.
85. Saimun Mishra, P.W. 13 has stated on the same line as stated by P.W.12 and she has also identified Guddu and Husuru in the dock. In her cross examination, she has stated that she identified both the accused persons by their voice as she knew both of them since their childhood.
86. Thus, the testimony of PW.5, 6 and 7 has fully fortified by the testimony of P.W.12 and 13 and the place of occurrence and presence of Guddu and Sajjad Husru has fully been established.
87. Further Sabra Khatoon, P.W 14 and Salim Khan, P.W. 15 both have confirmed that they heard the sound of gun shot and also heard and cry of help coming from the house of Guddu. Salim Khan, PW15 has further stated that on the date of occurrence he saw the accused Guddu, Husuru, Niraj and two others threatening the people, who had gathered there. He identified Husuru and Guddu in the dock.
88. Further, Pramod Rawani, P.W. 2, Devendra Kumar
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2025:JHHC:13144 Chaurasia, PW. 3, Tappu Pandey, PW 4, Bindeshwari Pandey @ Raju Pandey, P. W. 16. Awadhesh Paswan, P.W 17 and Sakaldeep Gour @Raja Khatik (informant), P.W. 22, all have stated that on 04/9/2009 they started looking for Jitendra and Pramod and all of them went together in the car of Raja Khatik in search of Jitendra and Pramod. They went to Shivlibari basti to the house of Guddu and Niraj but they were not present there. They have also stated that one Pathak Jee and others told them that Guddu and Niraj have committed murder of three persons and have thrown the dead bodies in a drain near Rajpura colliery. These witnesses have stated that they went to the place of occurrence and identified the dead bodies, which were of Jitendra, Pramod and Firoz.
89. Sakaldeep Gour @ Raja Khatik (informant), P. W. 22 has stated that while looking for his son when he reached near Shivlibari basti, Kundan (P.W.19), Bijay (P.W.18) and Pathak Jee told him that Guddu, Niraj, Sajjad, Sonu, Gullu, Rinku and Chotu had murdered his son Pramod and Firoz and their dead bodies lying in a drain near Rajpura colliery. He has identified the accused persons in the dock.
90. Thus, it is apparent that the claim of P.W.18 and 19 as an eyewitnesses has fully been fortified from this part of testimony of the aforesaid witnesses particularly from the testimony of P.W.22 wherein he has categorically stated that
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2025:JHHC:13144 at Shivlibari basti, Kundan (P.W.19), Bijay (P.W.18) and Pathak Jee told him that Guddu, Niraj, Sajjad, Sonu, Gullu, Rinku and Chotu had murdered his son Pramod and Firoz and their dead bodies lying in a drain near Rajpura colliery.
91. Md. Eklakh, P.W. 9 has stated that he saw Guddu, Husuru @ Sajjad, Sonu, Rinku and Chotu in the said quarter. They were washing the quarter and also putting on fresh paint on it. He had identified all the accused persons in the dock. In his cross examination, he has stated that he saw the accused persons white washing the place of occurrence from the distance of 10 fts.
92. Md. Asgar Quarashi, P W. 11 has stated that on the next day of occurrence, he had gone to the place of occurrence where police seized the fired cartridge case and prepared a seizure list and the police collected the blood and human hairs from the wall of the quarter where the deceased persons were murdered. He further testified that after 12 to 14 days, he was again called by Zia-ul-Hussain P. W. 8 to the place of occurrence where he saw Sajjad @ Husuru and Guddu with the police and on their pointing out, a loaded country made pistol was recovered from the heap of garbage. He has also stated that on the pointing out of Guddu and Sajjad @ Husuru, a cart was recovered from the tank. He has identified the cart in the dock. He has identified the accused persons
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2025:JHHC:13144 Guddu Alam, Sajjad @ Husuru, Rinku Ansari in the dock. He did not identify the accused Sonu in the dock. In his cross examination, he has stated that place of occurrence is near the community hall in the quarter of Md Idris. He has stated that the cart was taken out from the tank in his presence and the cart had wheels of bicycle.
93. Thus, from testimony of this witness it is evident that country made pistol and the cart which were used in the alleged commission of crime has been recovered on the instance of the accused persons namely Guddu and Sajjad @ Husuru. However, the said pistol was used in order to create fear among the local resident which would be evident from the testimony of the prosecution witnesses. Thus, the testimony of the other witnesses on the point of place of occurrence and use of country made pistol has fully been established.
94. Arun Kumar Singh, P. W. 20 is the police officer, he has proved the seizure of piece of burnt gunny bag and he had stated that dead bodies were recovered from a drain in half burnt state and a burnt plastic gunny bag was lying below the dead bodies.
95. Pramod Kumar, P.W. 21 is another police officer, who has stated that on the statement of accused Guddu, a loaded country made pistol was recovered from the heap of garbage. He has signed the seizure list of the said recovery and proved
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2025:JHHC:13144 the seizure list, which is Ext.-15. He has also proved the pistol and the recovered bullet, which are material Ext.-VI Series. He has stated that on the statement of accused persons, cart used in transporting the dead bodies were recovered from Babua Khadia (tank). He has proved the seizure list of the seized cart, which is Ext.-16.
96. Thus, from the testimonies of aforesaid witnesses the fact of recovery of incriminating articles has fully been substantiated and the same has been substantiated by the testimony of other prosecution witnesses.
97. Raj Narayan Singh, P.W. 25 is the investigating officer of the case. At paragraph 9 of his testimony he has proved the place of occurrence. According to him, there are two places of occurrence of this case First is where the murder was committed, it is one room quarter of Md. Idris, which is under unauthorized occupation of accused Guddu Alam and room and varanda of this quarter where the murder was committed was stained with blood and attempt was made to conceal them by white washing over the blood stains. He has further stated that blood and human hair were found stuck at about six fts from the floor in the wall of the varanda.
98. At paragraph 12, he has stated that second place of occurrence is a place from where dead bodies were recovered. It is eight fts broad and five fts. deep drain, in which, water of
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2025:JHHC:13144 colliery flows and the dead bodies were lying besides each other. Burnt plastic gunny bags were found on the dead body. He has stated that the palm tree and other vegetation near the drain were found burnt and singed. At paragraph 13, he has stated that there was mark of cycle tire or a cart near this place of occurrence coming from Shivlibari side.
99. At paragraph 15 of his testimony, he has stated that a trail of blood was found on the way from the first place of occurrence to the second place of occurrence. Sample of blood could not be collected from there as there was slight rain in the night and sufficient blood was not available for taking sample. He has stated that the accused Guddu Alam and Sajjad @ Husuru were taken on remand and on their confession, a loaded country made pistol was recovered. The cart used in transporting the dead bodies was also recovered from Babua Khadia tank. He has proved the confession of Guddu Alam and Sajjad @ Husuru, which are Ext.-27 and 28 respectively.
100. So far motive for the alleged occurrence is concerned, he has testified that during the course of investigation, it has come to that absconding accused Niraj was having affairs with Chandni. The deceased Firoz was also having affairs with her.
101. He has stated that one of the main witnesses D.N. Pathak has been threatened by the accused persons not to give
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2025:JHHC:13144 evidence, due to which he has left his home and fled away from Dhanbad. He has proved the FIR of Chirkunda P.S. case No. 66/2010 relating to threatening of witnesses, which has been marked Ext.-32.
102. He has been cross examined at length. He has further stated that no material used in white washing was recovered from the quarter of Guddu Alam. He has further stated that Kundan Singh in his statement under Section 161 Cr.P.C. has stated that he and Pathak Jee had told Raja Khatik about the incidence relating to murder of the deceased persons.
103. Thus, from the testimony of this witness it is evident that an eyewitness i.e. Kundan Singh in his statement under Section 161 Cr.P.C. has told that he and Pathak Jee had told Raja Khatik about the incidence relating to murder of the deceased persons. Therefore, from this part of testimony the claim of the Kundan Singh (P.W.19) as an eyewitness has fully been satisfied. Further the fact of recovery of incriminating articles on the confessional statement of the accused persons has also been fortified by his testimony.
104. This witness has also testified on point of non- examination of the Pathak Jee and has specifically stated that Pathak Jee was being threatened by the accused persons not to give evidence, due to which he has left his home and fled away from Dhanbad. He has proved the FIR of Chirkunda P.S.
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2025:JHHC:13144 case No. 66/2010 relating to threatening of witnesses, which has been marked Ext.-32.
105. Thus, from the appreciation of testimonies of all the prosecution witnesses it is evident that the testimony of the eyewitness has fully been substantiated by the testimony of other witnesses and further the recovery of all the incriminating material has also been corroborated by the material available on record.
106. On the cost of repetition, this court thinks fit to revisit the testimony of Bijay Prasad, P W 18 and Kundan Singh PW 19 who are eye witnesses of this case. They have stated that on 03/9/2009, while they were crossing from the place of occurrence, they saw a crowd gathered there and cry of help was coming out from the quarter which was an unauthorized occupation of accused Guddu Alam. They have stated that they went inside the quarter and saw a dead body of person lying on the ground. They also saw the accused Sajjad @ Husuru, Niraj, Sonu, Chotu and Rinku were assaulting two other persons and both the victims subsequently fell on the ground and died. Nothing has come on record to established that these witnesses were on inimical terms with the appellants. Both the witnesses have corroborated each other on the fact that they had seen the accused persons assaulting two persons and they have also seen the dead body of a third
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2025:JHHC:13144 person in the quarter, which was under unauthorized occupation of Guddu Alam (one of the appellants herein).
107. From the aforesaid facts and circumstances, it is evident that without iota of doubt that the prosecution has been able to prove that the deceased Jitendra Gour, Pramod Verma and Firoz were murdered in unauthorized occupied quarter of Guddu Alam. Their dead bodies were then transported by a cart and dumped in a drain near Rajpura colliery.
108. As discussed hereinabove Md Sabir @ Lal Babu, P.W. 5. Salauddin, P.W 6 Ghulam Rasool, PW. 7, Md. Eklakh, P W 9. Mina Khatoon, PW 12, Saimun Mishra, P.W. 13, Sabra Khatoon, P W. 14, Salim Khan, P W 15, Bijay Prasad, P.W 18 and Kundan Singh, P W 19, all have testified that the first place of occurrence is the quarter, which was under
unauthorized occupation of Guddu Alam. Further it has been testified by the Ghulam Rasool, P.W 7, Md. Eklakh, P.W. 9 and Md. Idris, P W. 10, that when they went to the place of occurrence, they saw blood stains and blood spots all over the quarter.
109. Further Investigating officer Raj Narayan Singh, P W. 25 has given the vivid description of second place of occurrence i.e, a drain near Rajpura colliery which has been substantiated by Arun Kumar Singh PW 20. P.W.25 further deposed that Plastic gunny bags were kept below the dead
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2025:JHHC:13144 bodies and Trees and plants near the dead bodies were found burnt. It is evident from the aforesaid oral testimony of the prosecution witnesses that they have corroborated each other on the second place of occurrence which is the drain near Rajpura colliery.
110. This Court after taken in to consideration the evidence available on record in its entirety, is now coming to discuss to complicity of the aforesaid appellants one by one.
111. As far as the complicity of the accused Guddu Alam (appellant in Cr. Appeal (DB) No. 687 of 2010) is concerned Alok Kumar Rai PW 1 and informant Sakaldeep Gour @ Raja Khatik, PW 22. both have stated that on 03/9/2009, accused Guddu Alam had come to the godown of informant and the deceased Jitendra Gour, Pramod Verma and Firoz had accompanied him. Tappu Pandey, PW 4 had seen the deceased persons with Guddu Alam sitting on a car near a betel shop. Md. Sabir Lal Babu, P.W. 5. Salauddin, PW 6 Ghulam Rasool, PW 7 and Salim Khan, PW 15, who are resident near the quarter i.e. place of occurrence where they heard sound of firing and cry of help coming from the quarter of Guddu Alam and when they came outside, the accused Guddu Alam and other accused persons were threatening the residents to go back to their respective houses. Further, these witnesses have categorically stated that this accused was armed with a
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2025:JHHC:13144 revolver.
112. Bijay Prasad, PW 18 and Kundan Singh, P.W. 19, both are the eye witnesses of the case and when they reached at the place of occurrence, they saw the that accused/appellant Guddu Alam inside the room where deceased persons were being assaulted.
113. From paragraph 5 of the testimony of Bijay Prasad (P. W.
18) it is evident that when they entered into the quarter of Guddu Alam, he saw the accused Sajjad, Niraj, Sonu, Chotu and Rinku assaulting the deceased persons Guddu Alam was present there. Guddu Alam asked him and his companions to leave the place of occurrence otherwise they will also be killed. Kundan Singh (PW 19) at paragraph 5 of his testimony had stated that they saw the accused persons assaulting the deceased persons in the quarter of Guddu Alam and Guddu Alam was also present there and he was inciting the other accused. Further this accused/appellant has been identified by most of the prosecution witnesses in the dock.
114. Further, Zia-ul-Hussain, PW 8 and Md. Asgar Qurashi PW 11 have supported the factum of recovery of a cart and a loaded country made pistol which was recovered from Babua Khadia and heap of garbage near the community hall respectively on the pointing out of the accused Guddu Alam and Sajjad Husuru.
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2025:JHHC:13144
115. Considering the entire gamut of the prosecution case it is considered view of this Court that the prosecution has been able to prove the alleged charges against the accused Guddu Alam for the offence under Sections 148, 302/149 and 201 IPC beyond all reasonable doubts for committing rioting armed with deadly weapon under Section 148 IPC, for committing murder of Jitendra Gour, Pramod Verma and Firoz in prosecution of the common abject of unlawful assembly under Section 302/149 IPC and cause disappearance of evidence to save himself from punishment under Section 201 I.P.C.
116. So far as complicity of accused Sajjad Quarashi @ Husuru (Appellant in Cr.Appeal (DB) No.632 of 2010) is concerned, Md. Sabir Lal Babu, P.W 5 has stated that on the date and time of occurrence after hearing gun shot when he went to his roof, he saw this accused standing at the place of occurrence with the revolver and this accused asked him to go inside. Md. Eklakh, P.W 9 has stated that on the next day of occurrence he went to the quarter of Guddu Alam, he saw this accused, Guddu, Sonu, Rinku and Chotu washing the floor and also white washing the walls. He has identified this accused in the dock.
117. Bijay Prasad, PW, 16 and Kundan Singh, P.W. 19, both have stated that involvement of this accused in the gruesome murder of the deceased persons. Bijay Prasad, P.W. 18 at
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2025:JHHC:13144 paragraph 4 has testified that when they went inside the quarter of Guddu Alam, they saw a dead body of a person lying on the ground and also saw 4-5 persons assaulting two persons. He has identified this accused Sajjad Quarashi @ Husuru assaulting two persons with lathi. Kundan Singh, PW. 19 at paragraph 5 has stated that at the time of occurrence when he went inside the quarter of Guddu Alam, he saw a dead body of a person lying on the ground and all the accused persons were assaulting two other persons and one person was assaulting by lathi. He has identified the accused Sajjad Quarashi @ Husuru in the dock as the person who was assaulting the deceased persons with lathi.
118. Further on the point of recovery of incremating articles Zia-ul-Hussain, PW 8 at paragraph 7 has stated that on the pointing out of this accused a loaded country made pistol and a cart was recovered from Babua Khadia tank. The factum of the aforesaid recovery has been substantiated by the testimony of Md. Asgar Qurashi, PW 11.
119. The witnesses have supported the fact that the dead bodies were found partially burnt and Plants and trees around the second place of occurrence were also found burnt. Thus, from the testimonies it is evident that the accused persons had disposed of the dead bodies away from the first place of occurrence and tried to conceal the identity of the deceased
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2025:JHHC:13144 persons in order to evade themselves from legal punishment.
120. From the aforesaid facts and circumstances, it is considered view of this Court that the prosecution has been able to prove its case against this accused/appellant Sajjad Quarashi @ Husuru for offence under Sections 148, 302, 302/149 and 201 IPC beyond all reasonable doubts.
121. So far the Culpability of the accused Sonu Ansari @ Sagar Ansari (appellant in Cr. Appeal (DB) 687 of 2010) is concerned, the eyewitness Bijay Prasad P.W 18 at paragraph 2 has stated that at the time of occurrence while he was crossing through the quarter of Guddu Alam with Pathak Jee and Kundan Singh(P.W.19), they heard cry of help, on which, they went inside and saw a person lying on the ground apparently dead and the accused Sajjad @ Husuru alongwith 4-5 persons were assaulting two other persons by lathi. He has stated that Niraj was assaulting two persons by hockey stick and other accused Sonu Ansari @ Sagar Ansari was assaulting them by rod. Another eyewitness Kundan Singh, P W. 19 at paragraph 3 has stated on the same line in the tune of testimony of P.W.19 and has stated that when he reached at quarter some persons were assaulting two other persons. He has stated that Niraj was assaulting them by hockey stick Guddu Alam was present there with a pistol and inciting the persons. One person was assaulting both the deceased by a
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2025:JHHC:13144 rod. This witness has identified the accused Sonu Ansari @ Sagar Ansari in the dock and stated that he was assaulting the victims by rod.
122. From the aforesaid oral evidence, it is evident that the witnesses Bijay Prasad, P.W. 18 and Kundan Singh, PW. 19 have corroborated each other regarding their presence at the place of occurrence. They have corroborated the testimony of each other on the point of allegation against the accused Sonu Ansari @ Sagar Ansari regarding assaulting the deceased persons by rod. Raj Narayan Singh, P.W. 25 has stated that prior to the occurrence and even on the date of occurrence, this accused was constantly in touch with deceased Firoz on his mobile phone and on 03/9/2009 from 3.00 pm. to 10.00 pm, this accused had called deceased Firoz five times and Firoz had called him nine times. From perusal of the print out of mobile phone of Sonu Ansari @ Sagar Ansari, Ext-29 and that of deceased Firoz, Ext -30 it is evident that there were numerous phone calls between these two persons about 14 times just before to the occurrence.
123. From the aforesaid facts and circumstances, it is evident that the prosecution has been able to prove its case against the accused Sonu Ansari @ Sagar Ansari for the murder of the deceased Jitendra Gour, Pramod Verma and Firoz and also for being member of unlawful assembly and committing the act of
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2025:JHHC:13144 rioting armed with deadly weapon.
124. This court taking in to consideration the aforesaid fact is of the considered view that the prosecution has been able to prove its case against the accused Sonu Ansari @ Sagar Ansari for offence under Section under Sections 148, 302/149, 201 and302 1.P.C beyond all reasonable doubt.
125. 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 after giving its thoughtful consideration to the testimony of eye witness (P.W.18 & P.W.19) being corroborated by the testimony of other witnesses and investigating officer (P.W.25) 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, requires no interference by this Court.
126. Accordingly, both criminal appeals, i.c. Criminal Appeal (DB) No.632 of 2010 and Criminal Appeal (DB) No.687 of 2010, stand dismissed.
Acquittal Appeal No.12 of 2010
127. As referred hereinabove the aforesaid Acquittal Appeal has been preferred by the appellant state against the order dated 30.04.2010 passed in S.T. No.4 of 2010 whereby the respondent namely Gullu Alam @Gulzar Alam has been
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2025:JHHC:13144 acquitted for the charges under Sections 302/149, 302, 201, 379 and 148 of the IPC.
128. The learned counsel for the appellant state has conteded that respondent Gullu Alam @ Gulzar Alam was all along present at the place of occurrence being part of the unlawful assembly having a common object of committing murder of the deceased Jitendra Gaur, Pramod Verma and Firoz.
129. It has further been submitted that P.W.-18 Bijay Prasad and P.W.-19 Kundan Singh both the eye witnesses have stated that when they came out of the quarter of Guddu Alam, after seeing the occurrence they saw a person talking on a mobile phone and during the course of trial the P.W.-18 Bijay Prasad identified the respondent in dock who was seen talking on the mobile phone and during entire course of occurrence respondent was passive and did not try to inform any authority which indicates that he was also a member of the unlawful assembly who committed the murder of three persons.
130. Per contra, learned counsel for the respondents has submitted by defending the judgment of acquittal on the ground that the learned trial court is correct in coming to the conclusion that the prosecution has failed to establish the charge beyond all shadow of doubt and as such by taking into consideration the cardinal principle to prove a charge and to
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2025:JHHC:13144 convict the perpetrator is to depend upon the proving of charge beyond all shadow of doubt and wherein by taking together the evidence of the witnesses, it will transpire that there is wide contradiction, as such, by taking into consideration these aspects of the matter if the learned trial court has come to conclusion that the prosecution has failed to establish the charge beyond all shadow of doubt, the same cannot be said to suffer from an error and as such the impugned judgment of acquittal does not require any interference.
131. In addition to the aforesaid the learned counsel for the respondent has submitted that an eyewitness Bijay Prasad PW-18, has stated that he had seen the accused outside the quarter of Guddu Alam talking over his mobile phone, though, it has come in evidence that several persons of the locality had gathered at the place of occurrence.
132. It has further been submitted that the other witness, who also claims himself to be the eye witness, i.e., Kundan Singh PW-19, did not identify him in the dock as the person who was standing outside the room and was talking over his mobile.
133. All the material and prosecution evidences available on record has already been referred herein above and appreciated by this Court.
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2025:JHHC:13144
134. In the instant appeal only, accusation put forth against the respondent that as per testimony of Bijay Prasad, PW. 18 that he had seen the respondent/accused outside the quarter (place of occurrence) of Guddu Alam talking on a mobile phone. Further it appears from the contention of the parties that learned counsel for the state appellant has also emphasized on this point of argument only that PW. 18 had seen the respondent/accused outside the quarter (place of occurrence) of Guddu Alam(accused/appellant) talking on a mobile phone.
135. Thus, in the aforesaid backdrop only point for determination herein that whether the presence of the respondent outside the place of occurrence itself sufficient for conviction of him for unlawful assembly or there should be any cogent evidence should have put forward by the prosecution about his alleged involvement in the said commission of crime.
136. After taking into consideration the aforesaid deposition of the witnesses referred herein above and before entering into merit of the case, the power and jurisdiction of the appellate court is required to referred herein.
137. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded and the Code of Criminal Procedure, 1973 puts no
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2025:JHHC:13144 limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
138. However, before the Appellate Court decides to interfere with a judgment of acquittal, it is required in law to record a finding that there are compelling reasons arising out of overlooking some vital evidence on the record that warrants interference with the judgment of acquittal. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex Court in Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415 wherein the Hon'ble Supreme Court held that even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. For ready reference the relevant paragraph of the aforesaid Judgment is being quoted as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact
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2025:JHHC:13144 and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court." (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
139. Similarly, the Hon'ble Apex Court in the case of Jaswant Singh v. State of Haryana (2000) 4 SCC 484 has observed that the principle to be followed by the appellate courts considering an appeal against an order of acquittal is to interfere only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference. For ready reference the relevant paragraph of the aforesaid judgment is being quoted
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2025:JHHC:13144 as under:
"21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference (Shivaji Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat : (SCC p. 229, para 7) "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then -- and then only-- reappraise the evidence to arrive at its own conclusions."
140. Now coming to the facts of the instant case in the backdrop of the aforesaid settled legal position and material available on the record it is evident that on point of complicity of the respondent it has come on record that eyewitnesses had seen the respondent/accused outside the quarter (place of occurrence) of Guddu Alam talking on a mobile phone.
141. This court has again revisited the impugned order wherefrom it is evident that the learned trial court has taken note of the fact that the witnesses Bijay Prasad, P.W. 18 and Kundan Singh, P.W 19 both have stated that when they came
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2025:JHHC:13144 out of the quarter of the Guddu Alam after seeing the occurrence, they saw a person talking on a mobile phone.
142. It is evident that Bijay Prasad, P.W. 18 has identified the respondent/accused Gullu in dock while Kundan Singh, P.W 19 has failed to identify the respondent/accused. Thus, on the basis of the aforesaid it can be inferred that the presence of respondent at the place of occurrence become suspicious and not proved beyond reasonable doubt.
143. At this juncture it needs to refer herein that the Hon'ble Apex Court in the case of Rang Bahadur Singh vs. State of U.P reported in AIR 2000 SC 1209, it has been held by the Hon'ble Apex Court that Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. For ready reference the relevant paragraph of the aforesaid Judgment is being quoted as under:
"The time tested rule is 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, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
144. P.W.19 who is eyewitness of the occurrence and had given vivid description of occurrence as referred hereinabove, therefore, no reason is available herein to doubt the veracity of
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2025:JHHC:13144 testimony of this witness as he had not identified the respondent as a person who was talking on the phone outside the place of occurrence. Further, it has already come in evidence that several persons of the locality had gathered at the place of occurrence. Thus, from the aforesaid the direct complicity of this respondent/accused cannot be traced out.
145. At this juncture it would be apt to refer the settled position of law that if the two views are possible on the evidence adduced in the case, one pointing out to the guilt of the accused and other to his innocence, the view which is favourable to the accused be adopted as has been held by Hon'ble Apex Court in the case of State of U.P vs. Ram Veer Singh and Ors. reported in (2007) 6 (Supreme) 164 where the Hon'ble Apex has held as follows:
"A golden thread which runs through the wave of administration of Justice in criminal cases is that if the two views are possible on the evidence adduced in the case, one pointing out to the guilt on the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an accused. In a
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2025:JHHC:13144 case where admissible evidence is ignored, a duty is cast upon the appellate court to appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.
146. Further from appreciation of all the prosecution evidence as well as material available on record, it is evident that save and except that the respondent was present at the place of occurrence, nothing incriminating fact has come against this respondent to connect his complicity in the alleged commission of crime. Further, eyewitness P.W.19 had not identified this respondent/accused as the person who was talking on the phone out side the alleged place of occurrence.
147. The learned trial taking in to consideration the aforesaid facts and circumstances, has opined that the prosecution has failed to prove its case against the accused Gullu @ Gulzar beyond all reasonable doubts and accordingly trial court acquitted him of the charge under Sections 148,302/149, 302, 201 and 379 I.P.C.
148. Thus, on the basis of discussion made herein above and having regard to the aforesaid principle laid down in Jaswant Singh v. State of Haryana (supra) it is considered view of this Court that order dated 30.04.2010 passed by the learned trial
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2025:JHHC:13144 court by which the respondent has been acquitted from the alleged charges, requires no interference.
149. Accordingly, Acquittal Appeal (DB) No.12 of 2010 stands dismissed.
150. In the result, the aforesaid appeals, being Acquittal Appeal (DB) No.12 of 2010, Criminal Appeal (DB) No.632 of 2010 and Criminal Appeal (DB) No.687 of 2010 are hereby dismissed.
151. Since, the informant has died during the pendency of Criminal Revision No.741 of 2010 and no application on his behalf by any of his legal heirs has been filed for substitution, the instant criminal revision is hereby dismissed.
152. Pending Interlocutory Application(s), if any, also stands dismissed.
153. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
I agree (Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated, the 29th day of April, 2025.
A.F.R.
Birendra /
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