Jharkhand High Court
Futwa @ Mukhtar Alam vs The State Of Jharkhand on 4 April, 2025
2025:JHHC:12016
Criminal Appeal (S.J.) No. 860 of 2006
[Against the Judgment of conviction 08.06.2026 and Order of sentence
dated 09.06.2006 passed by learned Additional Sessions Judge-I,
Rajmahal in Sessions Case No. 21 of 1998]
Futwa @ Mukhtar Alam, Son of Late Makshud Sheikh,
resident of Koya Bazar, P.O. & P.S. - Rajmahal, District -
Sahibganj.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
WITH
Criminal Appeal (S.J.) No. 905 of 2006
1. Mashrul Sheikh, Son of Late Shutki Sheikh.
2. Abad Hussain, Son of Late Fasadu Sheikh.
All resident of Koya Bazar, P.O. & P.S. -
Rajmahal, District - Sahibganj.
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
WITH
Criminal Appeal (S.J.) No. 973 of 2006
Mojaul Sk., Son of Mojaffar Sk., resident of Koila Bazar,
P.S. - Rajmahal, District - Sahibganj.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
WITH
Criminal Appeal (S.J.) No. 1041 of 2006
1. Punni Sk. @ Multan Sk., Son of Late Rajmani Sk.
2. Taiyab Alam, Son of Md. Sahabuddin Sk.
Both are resident of Koila Bazar, P.S. -
Rajmahal, District - Sahibganj.
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
.....
For the Appellants : Mrs. J. Mazumdar, Advocate
For the Respondent : Mr. Jitendra Pandey, A.P.P.
[In all cases].
.....
P R E S E N T
Page 1 of 27
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HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 07.01.2025 Pronounced on 04.04.2025
1. Initially, Cr.A.(S.J.) No. 860 of 2006 was filed on behalf
of four appellants namely, Sultan Sheikh, Fakir
Mohammed, Ashu Sheikh and Futwa @ Mukhtar
Alam, but during pendency of the appeal, Sultan
Sheikh, Fakir Mohammed and Ashu Sheikh have died
and the appeal with respect to appellants namely,
Sultan Sheikh, Fakir Mohammed and Ashu Sheikh
was abated in terms of order dated 13.04.2022.
2. Similarly, Cr.A.(S.J.) No. 905 of 2006 was filed on
behalf of four appellants namely, Mashrul Sheikh,
Taiyab Alam, Abad Hussain and Hasa Sheikh @ Hasna
Sheikh, but the name of appellant no. 2 Taiyab Alam
was deleted in terms of order dated 07.09.2006, as
appellant no. 2, Taiyab Alam has preferred another
appeal bearing Cr.A.(S.J.) No. 1041 of 2006.
Thereafter, one of the appellants namely, Hasa Sheikh
@ Hasna Sheikh has died and the appeal with respect
to appellant namely, Hasa Sheikh @ Hasna Sheikh
was abated in terms of order dated 07.01.2025.
3. Appeals of surviving appellants namely, (1) Futwa @
Mukhtar Alam (appellant in Cr.A.(S.J.) No. 860 of
2006), (2) Mashrul Sheikh and (3) Abad Hussain
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(appellants in Cr.A.(S.J.) No. 905 of 2006), (4) Mojaul
Sheikh (appellant in Cr.A.(D.B.) No. 973 of 2006), (5)
Punni Sk. @ Multan Sk. and (6) Taiyab Alam
(appellants in Cr.A.(D.B.) No. 1041 of 2006).
4. Heard Mrs. J. Mazumdar, learned counsel appearing
for the surviving appellants and Mr. Jitendra Pandey,
learned A.P.P. appearing for the State in all appeals.
5. All the four criminal appeals have been directed
against the common judgment of conviction dated
08.06.2006 and order of sentence dated 09.06.2006
passed by learned Additional Sessions Judge-I,
Rajmahal in Sessions Case No. 21 of 1998, whereby
and whereunder, the appellants have been held guilty
for the offences under Sections 147, 148, 341,
323/149, 324/149, 326/149, 307/149, 337 and 504
of the I.P.C. and sentenced to undergo R.I. for six
months for the offence under Section 147 of the I.P.C.,
further sentenced to undergo R.I. for one year for the
offence under Section 148 of the I.P.C., further
sentenced to undergo S.I. for one month for the
offence under Section 341 of the I.P.C., further
sentenced to undergo R.I. for six years for the offence
under Sections 326/149 of the I.P.C., further
sentenced to undergo R.I. for six years for the offence
under Section 307/149 of the I.P.C., further sentenced
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to undergo S.I. for three months for the offence under
Section 337 of the I.P.C. and further sentenced to
undergo S.I. for six months for the offence under
Section 504 of the I.P.C. All the sentences were
directed to run concurrently. No sentence is awarded
in respect of the charges under Sections 323/149 and
324/149 I.P.C. as punishments have been awarded in
respect of the charges under Sections326/149 and
307/149, which are major offences.
FACTUAL MATRIX
6. The prosecution story as depicted in the F.I.R. lodged
on the basis of fardbeyan of one Anwarul Haque @
Khudia recorded by S.I. Naveen Prasad, Officer-in-
Charge, Rajmahal P.S. in Referral Hospital, Rahmahal,
Ward No. 2 on 21.02.1997 at about 21:45 hours is that
on 21.02.1997 (Friday) at about 5:30 P.M., the
informant's uncle Zahir Sheikh was returning from
Rajmahal Court, then in the way to his home, his Co-
villager, Futwa Sheikh started taunting and passing
some comments on his uncle Zahir, upon objection
raised by the informant, Futwa Sheikh started abusing
the informant and warned to teach a lesson. All of a
sudden Futwa Sheikh went inside the house and
immediately came out armed with a pistol, Khudia
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Sheikh armed with double barrel gun, Taiyab Sheikh
armed with a pistol, Mojaul armed with a pistol in his
right hand and hasua in his left hand, Jamil Sheikh
armed with a pistol, Punni Sheikh armed with a pistol,
Sultan Sheikh armed with hasua, Hasa Sheikh armed
with a sword, Fakira Sheikh armed with a sword,
Masrul Sheikh armed with a pistol and Ashu Sheikh
armed with pistol forming an unlawful assembly came
out from their respective house. It is further alleged
that just arrival of the accused persons at the place of
occurrence with their respective arms, Khudia Sheikh
fired from his doble barrel gun with intention to kill the
informant, which caused injury on his left ribs, then
the informant with a view to save his life started fleeing
away towards his home, meanwhile, Taiyab Sheikh
also fired upon the informant, but he escaped himself
and no injury was caused, but in the meantime,
Mojaul Sheikh gave hasua blow, which caused injures
on both wrists, but informant continued to flee away
under injured condition towards his home. It is further
alleged that other accused persons were chasing the
informant by pelting stones and firing and in that
course, one of the Co-villagers namely, Naim Sheikh,
who came to rescue the informant also got injured. It is
further alleged that when several villagers assembled
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to save informant, then they fled away. The informant
has also claimed that the above occurrence was seen
by witnesses Kharib Sheikh, Yusuf Khan, Nasir
Sheikh, Kurban Sheikh etc., who managed a bullock
cart and brought the informant under injured
condition to Referral Hospital, Rajmahal. Due to injury
on both hands, he put his LTI over the fardbeyan.
7. On the basis of fardbeyan of informant, FIR being
Rajmahal P.S. Case No. 29 of 1997 was registered
against the abovenamed 11 accused persons for the
offence under Sections 147, 148, 149, 341, 337, 323,
324, 326, 307 and 504 of the I.P.C. and Section 27 of
the Arms Act.
8. After completion of investigation, the I.O. of the case
has submitted charge sheet. Cognizance of the offence
was taken and subsequently, the case was committed
to the court of Sessions, where Sessions Case No. 21 of
1998 was registered. Charges have been framed for the
offences under Sections 147, 148, 341, 323/149,
324/149, 326/149, 307/149, 337 and 504 of the
I.P.C., to which the accused persons pleaded not guilty
and claimed to be tried.
9. In order to substantiate the charges leveled against
accused persons, altogether eleven witnesses were
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examined by the prosecution. Apart from oral
evidence of witnesses, following documentary evidence
has been adduced by prosecution:-
Exhibit-1 : Signature of Kurban Sheikh on
Fardbeyan.
Exhibit-1/1 : Fardbeyan.
Exhibit-1/2 : Endorsement on the Fardbeyan.
Exhibit-2 : Injury Report of Informant.
Exhibit-2/1 : Injury Report of Naim Sheikh.
Exhibit-3 : Formal F.I.R.
Exhibit-4 : Judgment dtd. 18.09.2004
passed in P.C.R. No. 257/1992,
S.C. No. 78/1999 in the court of
Ist Additional Sessions Judge,
Rajmahal.
10. On the other hand, the defence has also examined
four witnesses and adduced following documents:-
Exhibit-A : Signature of Kurban Sheikh (P.W.-6)
on affidavit.
Exhibit-B : C.C. of judgment of the learned
Sessions Judge, Sahibganj in S.C. No.
283/94 dated 27.06.2002.
Exhibit-C : C.C. of judgment passed by the
learned SDJM, Rajmahal dated
28.02.2000 in G.R. No. 266/93.
Exhibit-D : C.C. of charge sheet of Rajmahal P.S.
Case No. 175/2003 dated
11.12.2003.
Exhibit-E : C.C. of Final Form of Rajmahal P.S.
Case No. 149/2003 dated 9.10.2003.
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Exhibit-F : C.C. of supplementary final form of
Rajmahal P.S. Case No. 149/2003.
Exhibit-G : C.C. of F.I.R. of Rajmahal P.S. Case
No. 28 of 1997 dated 21.02.1997.
11. After conclusion of trial, considering the evidence
adduced by the prosecution and defence, the trial
court has convicted and sentenced the appellants, as
stated above, which has been assailed in these
appeals.
12. Learned counsel for the appellants has vehemently
argued that the learned trial court has travelled
beyond the evidence available on record and failed to
properly appreciate the same. The genesis of
occurrence lies in the taunting and some scuffle with
Zahir Sheikh, who happens to be the uncle of the
informant, but the said Zahir Sheikh neither has been
made witness in this case during investigation nor
examined as a court witness. It is admitted fact that
the said Zahir Sheikh was convicted for the offence
under Section 302 of IPC for causing murder of
brother of appellant Abad Sheikh.
13. It is further submitted that there is no iota of evidence
to prove the common object of the appellants without
proving the same, there cannot be any unlawful
assembly. It is also brought on record by prosecution
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witnesses that all the accused persons used to reside
in separate houses and at distant places from the
place of occurrence.
14. It is also surprising that although the FIR was lodged
on the same day from both side and the Investigating
Officer P.W.-11 visited the place of occurrence on the
next day morning, but no licensee gun of the
appellant Abad Sheikh was seized in this case. The
Doctors of Higher Centre, who treated the injured
informant, have also not been examined to prove
conclusively that the injuries sustained by informant
were caused by firearm. Although in the injury report,
it is stated that there were pellets injuries on different
parts on the back of the injured, but no pellets were
seized and produced during trial to substantiate the
same. The defence has also prejudiced from effective
to cross-examination of the Doctor, who conducted
the medical examination, inasmuch as the above
injuries may be caused by brick batting as is alleged
by the witnesses. The story of using firearm has been
absolutely manipulated by the prosecution.
Admittedly the injuries sustained by the informant
were simple in nature caused by sharp cutting
weapon. The cumulative effect of prosecution evidence
does not lead to commission of offence under Section
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326 and 307 of the I.P.C. The circumstances of the
case do not indicate the required intention or
knowledge for constituting the offence under Section
307 of the I.P.C. No supplementary injury report was
produced to prove the same to be grievous in nature.
No x-ray plates of wrist injuries were produced. It is
quite impossible that if several persons armed with
pistols, sword and hasua and in immediate presence
of the informant, then if intended to kill him, they
have sufficient opportunity and means to done away
with the informant and he could not escape by fleeing
as alleged.
15. It is further submitted that the learned trial court has
miserably failed to properly consider the defence
evidence and declined to rely upon the same merely
on account of existence of enmity between the parties
and no valid reason has been attributed for
disbelieving the documentary evidence of defence,
which clearly goes to show that Zahir Sheikh was
convicted for the offence under Section 302 of the
I.P.C. for causing murder of brother of Abad Sheikh,
informant of Rajmahal P.S. Case No. 201 of 1992.
16. It is also obvious that at first fardbeyan of accused
Taiyab Alam was recorded by the police in the same
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Hospital and FIR of Rajmahal P.S. Case No. 28/1997
was registered earlier than the FIR lodged by the
present informant.
17. It is further submitted that the occurrence is of the
year 1997 and out of 11 accused persons, 05
appellants namely, Sultan Sheikh, Fakir Mohammad,
Ashu Sheikh, Hasa @ Hasna Sheikh and Jamil Sk. @
Jamil Akhtar have died during pendency of the appeal
and the appeals on their behalf have already been
abated. In absence of any cogent evidence to
establish existence of any unlawful assembly with
particular "common object", the conviction of the
appellants under Sections 147 & 148 and for other
charges with the aid of Section 149 of the I.P.C. is
absolutely illegal and unwarranted. The main
attribution is against the appellants Futwa and Abad
Hussain @ Khudia Sheikh, who were held guilty for
the offence under Sections 147, 148, 341, 323/149,
324/149, 326/149, 307/149, 337 and 504 of the
I.P.C., have been released after sustaining full period
of sentence awarded to them. So far appellant Mojaul
Sheikh is concerned, the allegation against him is of
giving hasua blow upon the informant, but the
injuries are found to be simple in nature, therefore, at
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best offence under Section 324 of the I.P.C. is proved
against the appellant Mojaul Sheikh. Other appellants
deserve acquittal from the charges in absence of
cogent and reliable evidence.
18. In alternative, it is submitted that so far Mojaul
Sheikh is concerned, the occurrence is of the year
1997 and the appellant Mojaul Sheikh has faced the
rigor of trial for more than two decades and has
remained in custody for about 01 month and 19 days.
Under the facts and circumstances of the case,
appellant Mojaul Sheikh has sufficiently been
punished for his guilt. Hence, his sentence may be
reduced to the imprisonment already undergone.
19. Per contra, learned APP appearing for the State has
opposed the aforesaid contentions raised on behalf of
the appellants and has submitted that the trial court
has very wisely and aptly analyzed, scanned and
appreciated oral as well as documentary evidence
available on record and arrived at right conclusion
holding the appellants to be guilty for the offences
charged against them and adequately passed the
order of sentence. There is no illegality or infirmity in
the impugned judgment and order, calling for any
interference, by way of these appeals, which are
devoid of merits and fit to be dismissed.
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20. I have gone through the record of the case along with
impugned judgment in the light of contentions raised
on behalf of both side.
21. It appears that altogether eleven witnesses have been
examined in this case by the prosecution to
substantiate the charges levelled against the accused
persons.
P.W.-1, Saimul Sheikh, P.W.-2 Sudha Sheikh
and P.W.-9, Kuddus Sheikh have been declared
hostile by the prosecution.
P.W.-3, Tahir Sheikh and P.W.-4, Salimuddin
have been tendered for cross-examination.
P.W.-5, Yusuf Khan is an eye witness of the
occurrence. According to his evidence, on the date of
occurrence at about 5:30 to 6:00 P.M., he was inside
his house and after hearing hulla came out and saw
that scuffle was going on between Khudia Sheikh and
Futwa Sheikh, son of Maksud. Meanwhile, Abad
Hussain, Taiyab Alam, Fakir Mohammad, Daso
Sheikh, Masrul Sheikh, Ashu Sheikh, Majoul Sheikh,
Sultan Sheikh, Punni Sheikh, Jamil Akhtar also
approached there. Meanwhile, Abad Hussain opened
fire by gun which did not cause any injury, but he
again says that the said fire caused injury on left side
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to Khudia. He has further deposed that Taiyab also
opened fire upon Khudia, which did not cause any
injury. He has further deposed that Mujahul was
giving hasua blow on the neck to Khudia, which
warded off by his hands and sustained injuries on
both wrists. He has further deposed that seeing the
occurrence, he went inside the mosque and performed
namaj there and again he came out and saw other
accused persons were pelting stones, then he stayed
in the mosque and when the crowd scattered then he
went to his home.
In his cross-examination, this witness clearly
states that this case was lodged on the basis of
fardbeyan of Khudia, which was recorded in his
presence near the Village Mosque. The scuffle was
going on in front of his house on road. He could not
tell the reason for scuffle between the parties. He has
also admitted that the occurrence continued about
10-15 minutes and he saw the occurrence from
courtyard of the mosque. He also admits that in the
said occurrence only one person was injured.
P.W.-6, Kurban Sheikh. According to his
evidence, he was going to offer namaj in the village
mosque in the evening and when he reached near the
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mosque, then he saw that Abad Hussain, Futwa
Sheikh, Mojahul Sheikh, Sultan Sheikh, Multan
Sheikh, Hoso Sheikh, Taiyab Sheikh, Fakira Sheikh,
Ashu Sheikh and Ashrul Sheikh were running
towards the mosque. He has further stated that Abad
was bearing his double barrel licencee gun, Futwa
and Multan were armed with pistol, Sultan armed
with hasua, Mojaul armed with hasua, Hasna and
Fakira were armed with sword, Taiyab, Ashu and
Mashrul were armed with pistol. He has further
deposed that above accused persons were forming an
unlawful assembly. Abad Hussain ordered to kill
Anwarul and also fired upon him by his gun, which
caused injuries on ribs then Taiyab also fired, which
caused no injury to anyone. Thereafter, Mojaul gave
hasua blow to Anwarul, which was avoided by him on
his hands and got injuries on both hands. Thereafter,
Anwarul fled away towards his house and the accused
persons pelting stones upon the house of Nazir and
Yusuf, due to which mud tiles of the roof was broken.
This witness along with other villagers brought the
injured Anwarul by bullock cart to Referral Hospital,
where his fardbeyan was recorded in presence of
witness. He has also proved his signature on
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fardbeyan, which is marked as Exhibit-1. He could
not tell the reasons for the occurrence.
In his cross-examination, he states that he is the
cousin uncle of the informant. There is nothing
material in his cross-examination to rebut his
aforesaid testimony.
He has denied the suggestion of the defence that
in the same occurrence Taiyab Alam was also injured
and he was treated at Rajmahal Hospital and he has
also lodged Rajmahal P.S. Case No. 28 of 1997
against the informant party and family members of
this witness.
He has also denied the suggestion of the defence
that with a view to save his nephew, he is giving false
evidence, but this witness admits in the case of State
Vs. Abad Hussain, he has given evidence, but he has
not given evidence in the case of State Vs. Sultan
pending in this Court and also denied that he is a
professional witness.
P.W.-7 Anwarul Haque @ Khudia. He is the
informant-cum-injured in this case. According to his
evidence, on 21.02.1997 at about 5:00 PM, he was
coming towards Village Mosque from his home, then
he saw that Futwa Sheikh was passing comments and
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taunting to his uncle Zahir Sheikh, upon protest by
this witness, he was abused. He has further deposed
that his uncle proceeded by his cycle and he also
started to proceed ahead, but he was stopped by
Futwa Sheikh and also called upon Abad Hussain,
Mojaul, Jamil, Sultan, Punni, Taiyab, Hasa, Fakir,
Ashu, Masrul. Abad was armed with a gun, Mojaul
was bearing pistol in his right hand and hasua in left
hand, Futwa was armed with a pistol, Jamil was
armed with pistol, Sultan was armed with a hasua,
Punni was armed with a pistol, Taiyab was armed
with a pistol, Hasa and Fakir were armed with sword,
Ashu and Masrul were armed with pistol. Abad
Hussain opened fire upon him, which caused injuries
on his left ribs below arm pit. Taiyab also fired which
did not cause any injury. He has further deposed that
Mojaul threw his pistol and gave a hasua blow with
intention to kill, which was warded off by his both
hands causing injuries on wrists of both hands.
Anyhow, he started fleeing away with a view to save
his life. He has attributed no overt act to other
accused persons and specifically stated that nothing
else was done by accused persons. He was brought to
Rajmahal Sadar Hospital by bullock cart by Kurban,
Nazir, Yusuf, Ali Hussain and Ganesh, where his
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statement was recorded by police. He has further
deposed that from the Sadar Hospital, he was referred
to Government Hospital Malda for better treatment,
where he was admitted for three days. Thereafter, he
was referred to P.G. Hospital, Kolkata for plastic
surgery and for bringing out pellets. He got treatment
for 16 days.
In his cross-examination, this witness has
deposed that Zahir is his own uncle. He also admits
that Maksud Allam was father of Futwa, who was
murdered while he was village Mukhiya, In that
murder case, the uncle of this witness was convicted.
Abad Hussain is brother of Late Maksud Alam. He
further admits that his uncle Zahir did not call upon
him, rather he himself went towards him and asked
about the matter, then he said that accused were
taunting him, but exact words were not disclosed to
him. He also admits that all the accused persons are
residing in separate houses. He also admits that
counter case has been lodged against him by Taiyab
and on the same day, the statement of Taiyab was
also recorded by police in the Hospital, but he does
not know the same. He denies that Taiyab has also
sustained injuries in the said occurrence on back,
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arm and leg. He has denied the suggestion of defence
that no occurrence took place, rather he has falsely
implicated the accused persons in order to save his
skin from the case lodged by Taiyab against him.
P.W.-8 Nazir Sheikh is also an eye witness to the
alleged occurrence. According to his evidence, on the
date of occurrence at about 5 to 5:30 P.M., he was
near the mosque of his village, then he saw scuffle
was going on between Zahir and Futwa Sheikh. Upon
intervention by Anwarul @ Khudia, he was abused by
Futwa Sheikh and thereafter all the accused persons
armed with various weapons arrived at place of
occurrence. In the meantime, Khudia @ Abad opened
gun shot against Anwarul causing injuries on his left
ribs below the arm pit. Taiyab also opened fire arm,
but no one was injured and it was missed. He has
also stated that Mojaul assaulted Anwarul by hasua
causing injuries on his both hands. Other accused
persons were also pelting stones on the house causing
destruction of mud tiles and extending threat to kill
and fled away to their respective houses.
There is nothing in his cross-examination to re-
but his aforesaid testimony.
He has denied the suggestion of defence that he is
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brother-in-law of the informant, hence, he has given
false evidence in his favour and has seen no
occurrence, rather Taiyab was assaulted in that
incident. He has further denied the suggestion that
this case has been lodged to save from the case
instituted by Taiyab.
P.W.-10 Dr. Anand Prasad Sah is Medical Officer,
P.H.C., Burmu, Ranchi. He was posted at Rajmahal
Referal Hospital on 21.02.1997 and conducted
medical examination of injured Anwarul Haque @
Khudia at about 8:30 P.M. and found following
injuries:-
(I) Sharp cut injury 2 ½" x ¾" x1" on the dorsom
of left forearm just about the wrist.
(II) Sharp cut injury 1 ½" x ¾" x 1" on the dorso
lateral aspect of right forearm.
(III) Multiple gunshot injury on the different places
of left scapular region on the back.
This witness (P.W.-10) opined further that "Patient
was referred to Higher Centre for x-ray investigation
and for treatment. Detailed report will be submitted
after expert opinion."
Supplementary Report was given by him on
26.03.1997 after receiving X-ray Plate of injured
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Anwarul Haque along with photocopy of observation
report of Malda District Hospital and S.S.A.M.
Hospital, Calcutta. After perusal of above report, this
witness has opined Injury No. (1) was grievous. Injury
Nos. (2) & (3) are simple in nature. Out of which,
injury Nos. (1) & (2) caused by sharp cutting weapon,
injury No. (3) caused by projectile firearm. Injury
Report of injured Anwarul Haque was marked
Exhibit-2.
On the same day, he has examined injured Niam
Sheikh and found following injuries:-
(1) Lacerated injury 1" x ½" x ½" on the occipital
region on the scalp, which is opined to be simple in
nature and marked as Exhibit-2/1.
P.W.11, Naveen Prasad is the Investigating
Officer of this case. He has recorded the fardbeyan of
the informant at Referal Hospital, Rajmahal on
21.02.1997, which was read over and explained to
him and due to cut injuries on both hands, his thumb
impression was taken. Fardbeyan is marked as
Exhibit-1/1. He has also put endorsement on the
fardbeyan for registration of the case, which is
marked Exhibit-1/2 and formal F.I.R. is marked as
Exhibit-3. After registration of FIR, he undertook
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investigation of the case and recorded re-statement of
the informant, visited the place of occurrence, which
is situated in Village-Koyla Bazar, near Village
Mosque on the road about 200 yards distance towards
southern side, there is house of informant. He also
found huge quantity of brickbats which is indicative
of pelting brick bats by the parties on each other. No
other material was found at the place of occurrence.
He also recorded the statement of witnesses at the
place of occurrence. Thereafter, he was transferred
and part investigation was handed over to the then
Officer-in-Charge, Rajmahal P.S.
In cross-examination, this witness admits that he
has also recorded fardbeyan of Taiyab Alam at Referal
Hospital on the same day and on the basis of which,
Rajmahal P.S. Case No. 28 of 1997 was registered. He
has not prepared the sketch map of the place of
occurrence nor he noticed any mark of firing on the
nearby houses situated at the place of occurrence.
22. On the other hand, defence has also examined 04
witnesses.
D.W.-1 Md. Islam Sheikh is the local resident of
Koyla Bazar and residing in his house situated near
the Village Mosque. According to him, till evening no
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occurrence ever took place near the Village Mosque,
later on he heard that some occurrence of exchange of
assault taken place, wherein Taiyab Sheikh and
Futwa were injured, but in his cross-examination, he
states that occurrence took place at about 5:00 P.M.,
he only heard about the occurrence and not seen the
same.
D.W.-2 Lakim Sheikh is also resident of Koyla
Bazar, his house is situated near Village Mosque, but
has denied any occurrence of assault near the
Mosque on 21.02.1997, rather some occurrence took
place near the house of Adhir Singh in between
Khudia Sheikh and Futwa Sheikh. In the said
occurrence, Taiyab was assaulted by farsa and
sustained injuries on his left leg. He also admits that
Abad Sheikh is his brother-in-law.
He has denied the suggestion of prosecution that
Anmarul Haque was assaulted by accused persons of
this case.
D.W.-3 Ghotka Sheikh has also denied any
occurrence near the Village Mosque at Koyla Bazar,
rather the some occurrence took place near the house
of Adhir Singh on the road wherein Taiyab was
assaulted, but in his cross-examination specifically
2025:JHHC:12016
admits that he does not know in what case he has
come to testify before the court and denied the
suggestion of prosecution that Anwarul Haque was
assaulted by accused of this case.
D.W.-4 Nasiruddin Sheikh has testified that on
21.02.1997 at about 4:00 P.M. some occurrence of
exchange of assault took place, wherein Taiyab Alam
was assaulted by Nurain Hussain, Zahir, Mousim,
Khudia and Choudhary etc. near the house of Adhir
Singh. Taiyab has lodged a case against accused
persons, but he could not tell the present status of
that case. The occurrence took place near the
Mosque.
23. The genesis of occurrence is scuffle between the
appellant Futwa @ Mukhtar Alam and Zahir Sheikh
(uncle of informant). There is direct and specific
allegation that while the informant intervened in the
matter. The appellants Futwa and Abad Hussain @
Khudia armed with gun came out to teach a lesson to
the informant and other appellants were also
assembled with deadly weapons. The evidence, as
discussed above, clearly shows that appellant Abad
Hussain @ Khudia opened fire arm causing pellets
injury to the informant, which was likely to cause his
death.
2025:JHHC:12016
24. Considering the specific overt act of the appellants
namely, Futwa & Abad Hussain and also in view of
the fact that they have been undergone the sentence
of imprisonment awarded to them by the learned trial
court and have been released after sustaining full
period of sentence, there is no reason to interfere with
the impugned judgment of conviction and order of
sentence passed against these two appellants.
Therefore, the judgment of conviction and order of
sentence of the Futwa @ Mukhtar Alam (appellant
in Cr.A.(S.J.) No. 860 of 2005) and Abad Hussain @
Khudia (appellant in Cr.A.(SJ) No. 905 of 2006) is
upheld.
25. So far appellant - Mojaul Sheikh (appellant in
Cr.A.(SJ) No. 973 of 2006) is concerned, the
allegation against him is of giving hasua blow, which
is found to be simple in nature. No x-ray plates has
been proved, hence, his conviction under Section
324 of the I.P.C. is upheld and conviction under
rest of the offences is set aside.
So far sentence is concerned, it appears that
the occurrence is of the year 1997 and more than 28
years have elapsed and the appellant - Mojaul Sheikh
has remained in custody for about 4 months and 01
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week and has been sufficiently punished. Therefore,
considering the facts and circumstances of the case,
nature of offence committed by the appellant-Mojaul
Sheikh, this Court award the sentence of
imprisonment already undergone for the offence
under Section 324 of the I.P.C.
26. It is also apparent that no specific overt act against all
other surviving appellants namely, Mashrul Sheikh
(appellant in Cr.A.(SJ) No. 905 of 2006), Punni Sk. @
Multan Sk. and Taiyab Alam (appellants in Cr.A.(SJ)
No. 1041 of 2006) has been attributed by the
prosecution witnesses. The appellants, who have died
during pendency of these appeals were also convicted
only with the aid of Section 149 IPC and also for the
offence under Section 147/148 IPC. Admittedly, the
informant (P.W.-7), P.W.-5 and P.W.-6 have supported
the prosecution case, but have not attributed any
overt act against these appellants, therefore, it cannot
be concluded that all accused persons at any point of
time formed any unlawful assembly with any
particular common object and in furtherance thereof
have committed any offence.
27. In view of above, judgment of conviction and order of
sentence of appellants namely, Mashrul Sheikh
2025:JHHC:12016
(appellant in Cr.A.(SJ) No. 905 of 2006), Punni Sk. @
Multan Sk. and Taiyab Alam (appellants in Cr.A.(SJ)
No. 1041 of 2006) is hereby set aside and they are
acquitted from the charges levelled against them.
28. Accordingly, Cr.A. (SJ) No. 860 of 2006 is dismissed.
29. Cr.A.(SJ) No. 905 of 2006 and Cr.A.(S.J.) No. 973 of
2006 are partly allowed.
30. Cr.A.(S.J.) No. 1041 of 2006 is allowed.
31. Appellants namely, Mashrul Sheikh, Mojaul Sk.,
Punni Sk. and Taiyab Alam are on bail, as such they
are discharged from the liability of bail bonds.
Sureties are also discharged.
32. Let a copy of this judgment along with trial court
record be sent back to the court concerned for
information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated : 04th April, 2025
Sunil /N.A.F.R.
