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