Jharkhand High Court
Sajjad Qurashi @ Husuru vs The State Of Jharkhand on 29 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal No.632 of 2010
-----
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
-----
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
-----
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
-----
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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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).
--------
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
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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
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(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
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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
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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
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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-
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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
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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.
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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
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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(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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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
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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
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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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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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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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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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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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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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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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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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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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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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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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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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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"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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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