[Cites 12, Cited by 0]

Jharkhand High Court

Against The Judgment Of Conviction ... vs The State Of Jharkhand on 15 April, 2026

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

                                                2026:JHHC:10909-DB




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
         Criminal Appeal (D.B.) No. 358 of 2003

[Against the Judgment of conviction dated 15.02.2003 and Order of
sentence dated 22.02.2003 passed by learned 4th Additional
Sessions Judge, Fast Track Court, Garhwa in Sessions Trial No.
103/1999 & 129/1999]

Sarfuddin Ansari, S/o Late Sahin Ansari, Resident of
Village - Meral, Tolla - Makuna, P.S. - Meral, District -
Garhwa.
                                ...   ...    Appellant
                     Versus
The State of Jharkhand          ...   ... Respondent
                         WITH
        Criminal Appeal (D.B.) No. 391 of 2003

1. Nazamuddin Ansari.
2. Mazamuddin Ansari.
   Both sons of Sarfuddin Ansari, Resident of Village-
   Meral, Tolla-Makuna, P.S.-Meral, District - Garhwa.
                                ...    ...     Appellants
                    Versus
The State of Jharkhand          ...    ... Respondent
                        .....

 For the Appellants     : Mr. A.K. Kashyap, Sr. Advocate.
                          Mrs. Lina Shakti, Advocate.
 For the Respondent     : Mrs. Priya Shrestha, Spl.P.P.
                         .....
                      P R E S E N T
  HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

                        JUDGMENT

C.A.V. on 16.02.2026 Pronounced on 15.04.2026

Per Pradeep Kumar Srivastava, J.

1. Above two criminal appeals arises out of common

judgment of conviction and sentence passed in S.T.

No. 103/1999 & 129/1999, hence taken together for

hearing and adjudication.

2. Present appeals have been preferred by the appellants

against the Judgment of conviction dated 15.02.2003

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and order of sentence dated 22.02.2003 passed by 4 th

Additional Sessions Judge, Fast Track Court, Garhwa

in S.T. No. 103/1999 & 129/1999, whereby and

whereunder Sarfuddin Ansari (appellant in Cr.A. (DB)

No. 358/2003) has been held guilty for the offence

under Section 302 read with Section 120B of the

I.P.C. and Nazamuddin Ansari and Mazamuddin

Ansari (appellants in Cr.A.(DB) No. 391/2003) have

been held guilty for the offence under Section 302

read with Section 34 of the I.P.C. All the three

appellants have been sentenced to imprisonment for

life and appellant Sarfuddin Ansari is additionally

imposed fine of Rs. 5,000/- as default stipulation.

3. The factual matrix giving rise to these appeals in a

narrow compass is that on 28.07.1998, one Chhota

Sarfuddin (deceased) proceeded from Meral at about

7:45 A.M. by his cycle to railway station Meral for

going to Garhwa. It is alleged that informant

Immamuddin (P.W.-3) along with his nephew and

brother Fakaruddin Ansari (P.W.-5) riding on separate

cycle also went to see off Chhota Sarfuddin at railway

station. When they crossed about 200 yards from

their village, they saw Jalil, Khalil, Khurseed, Raseed,

Nabir, Tauhid, Tabib, Futun were sitting near Mahua

tree, who were whispering something against the

informant. It is further alleged that at about 8:00

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A.M., the informant along with his above two

associates reached near the field of Salim Mian at

Mahuram, then informant saw that Sarfuddin was

standing armed with Farsa at a distance of 50 yards

towards the western side of road. He also noticed

Nazamuddin and Mazamuddin armed with gadasa

and dagger respectively also came running and hide

themselves behind the Mahuwa tree of Munni Singh.

In the meantime, Nazamuddin gave a gadasa blow

from back on the neck of the Chhota Sarfuddin,

which resulted in half portion cut of neck and he fell

down in the field of Salim Mian due to involuntary

motion caused from behind. Thereafter, Naseem

Ansari (dead) and Karim Ansari came from eastern

side with pistol along with Bara Sarfuddin. It is

further alleged that Bara Sarfuddin and Nazamuddin

caught hold the legs of Chhota Sarfuddin and Nasim

(dead) and Karim caught hold of his both hands and

pressed him on earth, then Mazamuddin slitted the

neck of Chhota Sarfuddin (brother of informant). It is

also alleged that Karim and Naseem fired pointing

towards informant and Fakaruddin (P.W.-5), which

did not hit them and all the accused persons fled

away.

The motive behind the occurrence is previous

enmity between Chhota Sarfuddin (deceased) and

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Bara Sarfuddin (appellant in Cr.A. (DB) No.

358/2003) in connection with road contract and due

to this enmity one year prior to this occurrence, Bara

Sarfuddin attempted to cause murder of Chhota

Sarfuddin by assaulting on his neck, but he survived

after treatment in Ranchi. The accused persons were

threatening to kill the deceased from the happening of

the previous occurrence.

4. On the basis of above information, FIR was registered

as Meral P.S. Case No. 58 of 1998 for the offence

under Sections 147, 148, 149, 342, 307, 302 of the

I.P.C. and Section 27 of Arms Act against 14 named

accused persons. After conclusion of investigation,

charge sheet was submitted under Sections 147, 148,

149, 342, 307, 302, 120B of the I.P.C. and Section 27

of Arms Act against 11 accused persons and

supplementary charge sheet was also submitted

against Misafuddin, as such, cognizance of offence

was taken against all the 12 charge-sheeted accused

persons for the aforesaid offences. The case was

committed to the court of sessions, where above

Sessions Trial numbers were registered. One of the

co-accused Naseem Ansari died during trial, hence

proceeding against him was dropped.

5. The trial proceeded against rest 11 accused persons.

The learned trial court, after evaluating the evidence

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available on record, has convicted and sentenced the

aforesaid three appellants and other eight accused

persons were acquitted extending benefit of doubt.

6. Assailing the impugned judgment of conviction and

order of sentence of the appellants, learned senior

counsel for the appellants has strenuously argued

that in this case altogether 12 witnesses were

examined by the prosecution and also adduced

following documentary evidence i.e.

Exhibit-1 : Fardbeyan.

Exhibit-2 : Signature of informant (P.W.-3) on

fardbeyan

Exhibit-3 : Carbon copy of Inquest Report.

     Exhibit 4    : P.M. Report.

     Exhibit-5    :   Certified   copies      of    order    sheet,      FIR,

Charge-sheet and depositions of S.T. No. 290/1998.

7. The defence has also examined one witness and

marked documentary evidence i.e.

Exhibit-A : Signature of Nisafuddin on duty register.

Exhibit-A/1 : Signature of Saryu Sardar and others

on duty register

Exhibit-B : Leave Register.

Exhibit-C : Order-sheet and Complaint Petition of

Complaint Case No. 253/1997.

Exhibit-D : Order-sheet, F.I.R. and Charge-sheet of

G.R. No. 819/1996.

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8. It is further submitted that P.W.-12 has been

examined as independent eye-witness, who has stated

totally contradictory story as regards manner of

occurrence, which is not set up by the prosecution,

surprisingly, this witness has not been declared

hostile by the prosecution and the learned trial court

has not properly considered his evidence

controverting with the evidence of other eye-

witnesses. It is further submitted that due to non-

examination of the Investigating Officer, the defence

could not be able to get explained the glaring

contradictions appearing in the evidence of witnesses,

which seriously prejudiced the accused persons in

their effective defence. The place of occurrence was

also not proved with proper verification by the

Investigating Officer. The witnesses have also given

colourable evidence regarding actual place of

occurrence. Blood stained cloths of deceased were

also not produced as material exhibit. The bicycle of

deceased and the informant has also not been seized

and nothing has been whispered in this regard.

9. It is further submitted that the prosecution story as

depicted by the witnesses is absolutely contradictory

to the medical examination report of the deceased as

regards weapon used for commission of murder. The

post mortem report also suggest that time elapsed

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since death is 6-36 hours is absolutely vague, rather

the other symptoms on dissection mentioned by the

concerned doctor clearly suggest that the death was

within 18-36 hours, which falsifies the actual time of

occurrence, as stated by the witnesses, rather, it was

committed in the night in between 8-10 P.M. and the

appellants have been falsely implicated due to

previous enmity. The learned trial court has based its

finding only on the basis of evidence of highly

interested and inimical witnesses, ignoring the

evidence of independent eye-witnesses. It is further

submitted that the learned trial court has travelled

beyond the evidence available on record, while

concluding about existence of conspiracy in between

all the three appellants for committing murder of

deceased, but without recording any factual aspects

drawing inference about conspiracy, only appellant

Bara Sarfuddin has been held guilty for the offence

under Section 302 read with Section 120B of the

I.P.C. It is very strange as to how alone an accused

can enter into conspiracy with himself. On the other

hand, Nazamuddin Ansari and Mazamuddin Ansari

have been held guilty for the offence under Section

302 read with Section 34 of the I.P.C. In this

connection also, the ingredient of Section 34 of the

I.P.C. has not been proved and it is also not proved

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that both these appellants have acted in concerted

manner by inflicting blow by sharp cutting weapon.

The manner of occurrence as alleged in the FIR and

deposed by the witnesses as well as place of

occurrence is self-contradictory and real picture has

not been reproduced by the witnesses to place any

reliance upon their testimony. The presence and

participation of the appellants in the alleged

occurrence is absolutely doubtful as per the evidences

of prosecution witnesses themselves. Learned trial

court has acquitted 08 accused persons and during

investigation also several accused persons were not

sent up for trial. The witnesses have also stated about

role of all other accused persons, therefore, granting

premium of acquittal to most of the accused and

convicting the present appellants on different footing

is absolutely unwarranted under law. As such, the

judgment passed by the learned trial court suffers

from serious error of law and requires interference by

this Court in both the appeals by setting aside the

impugned judgment of conviction and sentence. The

appellants deserve acquittal from the charges leveled

against them.

10. Learned counsel for the appellants has relied upon

the judgments of reported in (2010) 3 SCC 538 (Para-

11 to 24), (2011) 9 SCC 561 (Para-15 to 22), (2004)

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3 Crimes 115 (SC) and (1991) 2 PLJR 463.

11. On the other hand, learned Spl.P.P. for the State

defending the impugned judgment and order and

controverting the points of argument as mentioned

above by the learned counsel for the appellants, has

submitted that the motive behind the occurrence has

been firmly proved by the prosecution against the

present appellants, who have earlier occasion also

attempted to murder the deceased by giving sharp cut

blow on his neck and proceeding of that case is also

pending. The appellants have in a pre-planned way

armed with deadly weapon like pistol, knife, dagger

etc. intercepted the deceased in the way and have

given fatal blow on his neck. The prosecution

witnesses have proved the prosecution story beyond

all reasonable doubt which finds corroboration from

Post-mortem Report of the deceased. Merely non-

examination of I.O. and non-production of blood

stained cloths or any other incriminating article is not

sufficient to disbelieve the prosecution case, when

testimony of oral / ocular witness appears reliable

and corroborated from other unimpeachable evidence.

There is no legal bar in recording conviction. The

defence has not been able to rebut the testimony of

prosecution witnesses and no satisfactory evidence

has been adduced to displace the prosecution case in

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its entirety. The learned trial court has very wisely

and aptly analyzed, appreciated and evaluated the

evidence available on record and rightly held the

appellants guilty and sentenced them for the offence

of murder. There is no illegality or infirmity in the

impugned judgment and order, calling for any

interference by way of these appeals, which is fit to be

dismissed.

12. We have gone through the record of the case along

with impugned judgment in the light of contentions

raised on behalf of both side.

13. The only point for consideration in both the appeals is

"as to whether the judgment of conviction and

sentence of the appellants passed by the learned trial

court suffer from any serious error of law, calling for

any interference in these appeals?"

14. Before adverting to impart our verdict on the above

point, it is desirable to appraise with the evidence

adduced by the parties.

15. Out of 12 witnesses examined by prosecution, P.W.-1

Bajuddin Ansari is the cousin brother of deceased

Chhota Sarfuddin. According to his evidence on

28.07.1998 at about 7:45 A.M., he was present in

village - Sanbariya. He returned to his home at about

8:30 A.M., then heard hulla in the village that Chhota

Sarfuddin has been murdered. He saw the dead body

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of Chhota Sarfuddin sustaining injury on neck, face

and other parts of the body under pool of blood. He

also claims to have seen some accused persons, who

were fleeing away, but could not identify them. This

witness has further disclosed that prior to this

occurrence, the deceased Chhota Sarfuddin had

lodged a case against Bara Sarfuddin. This witness

has been declared hostile by the prosecution only on

the point that in his statement under Section 161 of

Cr.P.C., he has disclosed the name of accused

persons, who were fleeing away after assaulting the

deceased.

In his cross-examination by defence, he admits

that the place of occurrence is situated at a distance

of 500 yards from the house of deceased.

16. P.W.-2 Aalim Seikh is the nephew of deceased. He

saw the dead body of his uncle lying near field of

Salim Mian in Village Mahuram. The neck was almost

slitted. Police also arrived at place of occurrence at

about 8:30 A.M., then inquest report was prepared.

He has disclosed nothing else.

17. P.W.-4 Jalaluddin Ansari has also claimed that he

was going to Meral on the date of occurrence at about

7:45 A.M., when he reached about 100 yards towards

south from his house then heard hulla coming from

Village - Mahuram. He rushed towards place of

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occurrence, then he heard noise of fire arm. He

continued running and reached at Mahuram then saw

that Bada Sarfuddin armed with farsa, Nazamuddin

bearing gadasa, Mazamuddin Ansari having knife,

Naseem Ansari and Karim Ansari having pistol, Jalil

Ansari, Khalil Ansari, Rashid Ansari, Khurshid

Ansari, Nabir Ansari, Tabir Ansari and Tauhid Ansari

were coming towards Mahuram raising alarm that

they have killed Chhota Sarfuddin by completely

cutting his neck. Upon this Bara Sarfuddin asked as

to they have completely slit neck, which was affirmed

by accused persons. Thereafter, he went to place of

occurrence and saw Chhota Sarfuddin was lying dead

and his neck was completely severed from the body.

He also saw there Immamuddin and Fakaruddin were

present.

In his cross-examination, he states that he

proceeded from his house at 7:40 A.M. and heard

sound of firing at 7:45 A.M. in the way coming from

Mahuram, which is situated at a distance of 400-450

yards, where he was standing. Again, he states that

he heard sound of twice firing, but he can't say who

has fired because he was standing at a distance. He

further admits that his village is infested with

naxallite activities and prior to this occurrence, 2-3

murder have been committed by the terrorists. He

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also admits that when he reached the place of

occurrence, none of the accused persons were

present, rather Immamuddin Ansari (P.W.-3) and

Fakaruddin Ansari were present. He further admits

that the accused persons were fleeing at a distance of

10 steps from this witness towards north side. The

dead body of Chhota Sarfuddin was lying on south

side from where Fakaruddin was standing and cycle

was lying at a corner of road. He stayed at the place of

occurrence till the arrival of police. He also admits

that deceased was his own uncle.

He has denied the suggestion of defence that being

the nephew of the deceased, he has given false

evidence and has not seen the occurrence.

18. P.W.-5 Fakaruddin Ansari is also nephew of the

deceased. He saw the dead body of his uncle Chhota

Sarfuddin was lying in Village Mahuram near the field

of Salim Mian. Police also arrived at the place of

occurrence and inquest report was prepared over

which he has also put his signature. This witness has

further deposed that the occurrence took place at

about 7:45 A.M. when Chhota Sarfuddin was going to

Meral by his cycle. This witness along with

Immamuddin Ansari (P.W.-3) (Informant) also

proceeded to Meral on another cycle and when they

reached at Mahuram, then saw that Nazamuddin

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Ansari armed with gadasa came from behind and gave

gadasa blow on neck of the deceased. Chhota

Sarfuddin sustaining injuries thrown away from the

cycle. In the meantime, Mazamuddin Ansari, Bada

Sarfuddin armed with farsa, Karim Ansari and

Naseem Ansari armed with pistol arrived there. In the

meantime, Naseem and Karim caught hold of hands of

Chhota Sarfuddin and Nazamuddin and Bara

Sarfuddin caught hold of legs then Mazamuddin

Ansari completely severed the neck of the Chhota

Sarfuddin by knife due to which, he died on the spot.

He further states that he along with other rushed to

save Chhota Sarfuddin then one of the miscreants

have shot one fire and all the accused persons fled

away. He has further deposed that apart from above

named accused persons, there were other miscreants

namely, Jalil Ansari, Khalil Ansari, Nabir Sheikh,

Putun Sheikh, Tauhid Ansari. He has claimed to have

identified all the accused persons.

In his cross-examination, he admits that he along

with P.W.-3 Immamuddin Ansari were at a distance of

20 steps from Chhota Sarfuddin on their cycle. They

saw the accused persons were standing at a distance

of 500 steps, then this witness along with

Immamuddin stopped there and do not try to flee

away. He further reiterates that Bada Sarfuddin was

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armed with farsa, Nazamuddin assaulted Chhota

Sarfuddin on neck by gadasa. At the time,

Nazamuddin inflicted gadasa blow on Chhota

Sarfuddin, he was riding on his cycle and his face was

towards south. Gadasa blow was given from behind

i.e. from north side by Nazamuddin. He further states

that due to injury sustained by gadasa on neck,

Chhota Sarfuddin was thrown from his cycle and fell

down at a distance of 5 yards towards east in the field

of Salim Mian. Just after felling on field, knife blow

was given to Chhota Sarfuddin slitting the neck by

Mazamuddin Ansari.

Attention of this witness has been drawn towards

statement under Section 161 of Cr.P.C., where he has

denied to state before the police that the neck of the

deceased was slitted by gadasa blow caused by

Nazamuddin Ansari. He further states that at the time

of first blow by gadasa, they did not raise alarm, but

alarm was raised when neck was slitted by knife, then

accused persons fled away towards east and some of

the accused towards west. He along with P.W.-3 went

near the deceased when all the accused persons fled

away. He further states that he saw the occurrence

from 500 steps when injury was inflicted by gadasa

and neck was slitted by knife. At the time of firing

towards them also they did not flee away. He further

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admits that fire arm was opened upon them from a

distance of 10 deg (steps) towards east side.

He has denied the suggestion of defence that he

has not stated before the police the specific overt acts

of the accused persons as stated for the first time

before the court and due to previous enmity being

nephew of the deceased, he has given false evidence.

19. P.W.-6 Maimun Bibi is the wife of deceased and

admittedly not an eye-witness of the occurrence. She

has stated the name of accused persons namely,

Nazamuddin, Mazamuddin, Bada Sarfuddin, Naseem

and Kisafuddin Ansari and others, total 13 accused

persons and other rest 08 accused persons were also

present near the place of occurrence. She has stated

in general terms that all the accused persons

assaulted to her husband by knife, farsa and gadasa

and slit the neck. She has also stated about previous

enmity with the accused persons in respect of

thekedari (Contractorship). On previous occasion also,

her husband was assaulted by knife on his neck by

the accused persons, but he was saved due to prompt

treatment at Ranchi.

In her cross-examination, she admits that she is

not an eye-witness of the occurrence, rather she was

present in her house. After two days of occurrence,

her statement was recorded by police. She has also

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disclosed before police that there was previous enmity

between her husband and accused persons on the

issue of contractorship.

She has denied the suggestion of defence that due

to previous enmity she has given false evidence.

20. P.W.-7 Md. Jabbar Khan is an Advocate Clerk, who

has only proved the carbon copy of inquest report as

Exhibit-3.

21. P.W.-8 Biku Ram has simply stated that Chhota

Sarfuddin was murdered by 12-13 accused persons

on 28.07.1998 in the morning at about 8:30 A.M. He

disclosed nothing else and declared hostile by the

prosecution and his attention has been drawn

towards his statement under Section 161 of the

Cr.P.C. recorded by the police.

22. P.W.-9 Lakhan Sao has also been declared hostile

and expressed no knowledge about the occurrence.

His attention has also been drawn towards his

statement under Section 161 of the Cr.P.C., which he

has denied.

23. P.W.-10 Dinesh Kumar Tiwari is bodyguard of S.P.,

who has simply proved the signature of the then O.C.

of Meral P.S. Sri. S.S. Baidyanathan on first

information report, which is marked Exhibit-3.

24. P.W.-11 Dr. Mahesh Prasad Singh has conducted the

autopsy on the dead body of Chhota Sarfuddin Ansari

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on 28.07.1998 at 3:30 P.M. and found following:-

Incised wound cutting through upper level of neck

- just at lower part of occipital bone - cutting skin of

back of neck, lower part of occipital bone muscle,

upper level of 1st cervical bone, spinal cord, cutting

through cheek, skin and muscles of both sides, lower

part of both ear, upper part of posterior ramai of both

mandibular bone and passing just above tongue.

Whole chopped off head attached with lower part by a

1½" wide flap of skin at left angle of mouth and cheek.

Brain matter also exposed in posterior part of brain

cavity.

This witness has opined that death occurred due

to shock and haemorrhage caused by the above

injuries. The injuries have been caused by sharp

weapon like gadasa. Time elapsed 6-36 hours since

post-mortem. He has also proved post-mortem report

as Exhibit-4.

In his cross-examination, this witness admits

that injuries were within 6-36 hours, it cannot be go

beyond 36 hours and before 6 hours. The sharp

weapon may be carved or straight. The injuries were

caused by a single blade.

25. P.W.-12 Laxman Singh. In his examination-in-chief,

has simply stated that on the date of occurrence at

about 8:00 A.M. he was going to Meral market. He has

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also stated that Chhota Sarfuddin and Fakaruddin

were also going to Meral market along with others and

identified Bada Sarfuddin and Putul Sheikh present

behind the dock.

In his cross-examination, this witness has taken a

drastic u-turn and stated that when Chhota

Sarfuddin was proceeding by his cycle, he gave lift to

this witness and he also sat on the carrier of the cycle

driven by Chhota Sarfuddin. He further proceeded

about 150 feet meanwhile a person armed with tangi

gave a tangi blow then he jumped from the cycle and

fled away due to fear. He could not identify the person

who inflicted the tangi blow. He has stated nothing as

to what happended with Chhota Sarfuddin.

26. The sterling prosecution witness is Immamuddin

Ansari, who is informant of the case and claims to be

eye-witness examined as P.W.-3. Therefore, his

evidence deserves to be discussed at length.

According to his evidence, on 28.07.1998 at about

7:30 A.M., his elder brother Chhota Sarfuddin was

going to Garhwa in connection with contract work.

This witness along with his nephew Fakaruddin also

proceeded on another cycle to see off his brother. He

further states that his brother Chhota Sarfuddin was

proceeding ahead and he along with Fakaruddin was

just behind from him. When his brother reached near

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Tola Mahuram, then Nazamuddin Ansari bearing a

gadasa came out behind the Mahuwa tree and

inflicted gadasa blow, which resulted in half cut on

neck due to which Chhota Sarfuddin Ansari fell down.

Thereafter, Mazamuddin Ansari whipped out a knife

and slit the neck completely. He has further stated

that Bada Sarfuddin was having farsa, Naseem and

Karim were armed with pistol. Again, Naseem and

Karim caught hold of leg and Bada Sarfuddin and

Mazamuddin caught hold of hand and Mazamuddin

slitted the neck. He has further deposed that Naseem

and Karim opened fire arm pointing towards this

witness and his nephew Fakaruddin, which did not

hit them. Thereafter, all the accused persons fled

away. He has further deposed that after retreat of the

accused persons from place of occurrence, he went

near his injured brother and saw that his neck was

completely severed from the body and he was lying

dead. Upon raising alarm, several villagers namely,

Sadique Sheikh, Aalim Sheikh, Wajuddin Ansari,

Sahabuddin Ansari and others arrived at the place of

occurrence. He has proved his fardbeyan as Exhibit-1

and signature on fardbeyan as Exhibit-2. He has

further stated that on previous occasion also Bada

Sarfuddin, Ali Hussain and Amin Ansari had

attempted to kill his brother Chhota Sarfuddin about

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one year prior to this occurrence. There was enmity

between the deceased and accused persons on the

issue of contractorship.

In his cross-examination, this witness admits

that he is five brothers including Chhota Sarfuddin

(deceased), Nisafuddin, Najibuddin and Sahabuddin.

Nisafuddin is also accused in this case. His son is

Naseem. He further says that witness Fakaruddin

(P.W.-5) is son of Sahabuddin. Other accused persons

are not belonging to his family. He also admits that

accused Nisafuddin is constable and at the time of

alleged occurrence, he was on duty at Barwadih. He

further states that the dispute about contractorship

for road construction was in between the deceased

and the accused Bada Sarfuddin and his sons

Nazamuddin and Mazamuddin, but he can't tell when

the scuffle took place regarding contractorship

between the parties. He further admits that Mahuram

is situated from his village at a distance of 500 yards.

He was behind 20 steps in the way from Chhota

Sarfuddin. No other persons were present at that time

and no public men were going. He further admits that

from his village to Mahuram road is at direction

towards south. Both deceased and he on cycle were

seeing towards south side. Both side of road there is

field. He further admits that when he was proceeding

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from his cycle, he can't see the accused persons

because they were hiding behind mahuwa tree. He

further admits that mahuwa tree was standing

towards western side of the road. There were 10-15

mahuwa tree at a distance of 50-100 yards. He

further admits that behind the mahuwa tree only two

persons, Nazamuddin and Mazamuddin were hiding.

When Chhota Sarfuddin fell down then other three

accused persons namely, Naseem, Bara Sarfuddin

and Karim came out from the mahuwa tree situated

towards east side, who threatened this witness by

showing pistol. He saw the occurrence from 20 steps

and due to fear did not raise alarm and alarm was

raised when the accused persons fled away. This

witness has given serious jolt to his earlier

statement in his fardbeyan by stating that the

gadasa blow was given at the neck of deceased

from front side causing injury on mouth also, then

deceased fell down. Blood stains were also present on

the road itself. Thereafter, wriggling under pain, his

brother crossing the road fell down in the field. Blood

stains were present on the field also, which was

collected by Police. The bicycle of the deceased was

also taken by police, but it was returned after 04

days. He has further stated that he did not notice the

blood stains on the clothes of accused persons while

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cutting neck of the deceased. The whole occurrence

was executed within 30 seconds. He also admits that

other seven accused persons were not present at the

spot, but they were threatening to kill the deceased.

He further states that both gadasa and knife were

used in assaulting the deceased. The gadasa was

not rusted, but was shining, which was in length

about 1¼ ft. The knife was also having one side edge,

which was opening and fitted with wooden handle or

iron handle, he can't see. He further states that the

neck of the deceased was not slitted and severed from

body, rather it was joined with some skin part. He

disclosed about the manner of occurrence only to his

brother and none of the other villagers, who

approached after the occurrence. His brother

Sahabuddin also went to police station for giving

information about the occurrence. Police arrived at

the place of occurrence after two hours. He has

denied the suggestion of defence that he has not seen

any occurrence and he has given evidence only on

account of previous enmity with the accused persons.

He has also denied that his brother has been killed by

extremists. He also admits that on previous occasion

also some extremists have killed some contractors.

He has denied the suggestion of defence that he

approached the place of occurrence after murder of

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the deceased by extremists and falsely implicated the

accused persons due to previous enmity and taking

vengeance.

27. On the other hand, defence witness D.W.-1 Komal

Pandey was examined for proving the plea of alibi of

one co-accused Nisafuddin Ansari, who has been

acquitted by learned trial court. It was proved that on

the date and time of occurrence, Nisafuddin is on

duty in JAP, Jamshedpur. No other oral or

documentary evidence has been adduced by the

defence. The case of defence is of false implication due

to previous enmity. The deceased himself was under

inimical terms with several persons and he might

have been killed under extremist activity.

28. This is a case of day light murder which allegedly

happened at about 8:00 A.M. in the morning. As we

have discussed above, the only eye witnesses of the

case are P.W.-3, own brother of the deceased and who

is also informant of the case and P.W.-5 Fakaruddin

Ansari. The other witnesses have admittedly arrived at

the place of occurrence after hearing hulla, in the

meantime, the deceased was lying dead on the spot.

Both P.W.-3 and P.W.-5 are brother and nephew of

the deceased. The Investigating Officer of this case

has not been examined during trial. Therefore,

contradictions appearing in the evidence of ocular

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witnesses could not get explained by the defence.

29. As per the prosecution story, the motive behind the

occurrence is dispute of contract work between

deceased and appellants and on previous occasion

also the appellants have attempted to kill the

deceased by inflicting knife blow. A serious objection

has been raised on behalf of learned senior counsel

for the appellants that both the above witnesses are

not only close relative of the deceased, but also

inimical to the appellants. They have also made his

own brother as accused namely, Nisafuddin Ansari,

who has been acquitted from the charges because it

was proved beyond doubt that he was not present at

the place of occurrence, rather he was on duty in JAP,

Jamshedpur. It is also pointed out by the learned

senior counsel for the appellants that there are

material contradictions and discrepancies as regards

the manner of occurrence, inflicting knife or gadasa

blow on the deceased and involvement of several

accused persons in the alleged murder, although the

testimony of witnesses cannot be discarded merely on

the ground of interestedness, but it is cardinal

principle of law that the testimony of such type of

witnesses must be scrutinized sparingly and with

great caution, so that no innocent person could suffer

simply on ground of retaliation.

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30. In above context, we have taken close scrutiny of

P.W.-3 and P.W.-5 as to how far their testimony is

reliable and fit for basis of conviction of the

appellants. P.W.-3 Immamuddin is informant of this

case and his fardbeyan was recorded by ASI S.

Badiyanathan, Officer-in-Charge, Meral P.S. on

28.07.1998 at about 10:30 A.M. at the place of

occurrence Village Mahuram near the dead body of

the deceased. In the FIR, it is alleged that when

deceased proceeded from his house then this witness

along with his one nephew boarding on his cycle and

his brother boarding on another cycle also went to see

off the deceased at Meral Railway Station, but he has

not disclosed the name of his nephew, who was

accompanied with him on his bicycle. He has also

stated that the deceased was only about 20 steps

ahead of them till the commission of the crime.

According to him, only they have crossed 100 yards

from their village and reached near Mahuwa tree then

saw several accused persons were talking something

against the informant. It is specifically alleged that at

about 8:00 A.M. when informant along with his

brother and nephew reached at Village Mahuram

about 500 yards away from his village then saw Bara

Sarfuddin Ansari armed with farsa standing about 50

yards away from road. In the meantime, from western

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side of road, Nazamuddin Ansari and Mazamuddin

Ansari, both sons of Bara Sarfuddin Ansari armed

with gadasa and knife respectively came from behind

the mahuwa tree and Nazamuddin Ansari gave a

gadasa blow from behind on the neck of his brother

Sarfuddin and throat was half cut then injured Chota

Sarfuddin fell down from cycle and thrown about 5

feet east in the field of Salim Mian. Thereafter,

Naseem Ansari and Karim Ansari appeared with pistol

along with Bara Sarfuddin. Bara Sarfuddin and

Nazamuddin caught hold the legs of Chota Sarfuddin.

Karim and Naseem caught hold of his hands and

pressed him on earth then Mazamuddin slit the neck

completely of Chota Sarfuddin, due to which, he died

on the spot. Thereafter, Jalil Ansari, Khalil Ansari,

Rashid Ansari, Khurshid Ansari, Nabir Ansari, Tabir

Ansari and Tauhid Ansari etc. also raised alarm to

ascertain whether Chota Sarfuddin has been died or

not? On the basis of fardbeyan of the informant, FIR

was registered against 14 named accused persons

including the present appellants.

31. In course of trial, the informant Immamuddin was

examined as P.W.-3, wherein he has admitted that he

was following his brother Chhota Sarfuddin and was

at a distance of 20 steps along with his brother and

nephew and when reached near Tola Mahuram,

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Chhota Sarfuddin was attacked by Nazamuddin

Ansari by gadasa on his neck, due to which he fell

down in the field. Thereafter, Mazamuddin Ansari slit

the neck by a big knife. Bara Sarfuddin was armed

with farsa, Naseem and Karim were armed with pistol.

He has further stated that Naseem and Karim caught

hold of legs and Bara Sarfuddin and Mazamuddin

caught hold of hands of Chhota Sarfuddin, then

Mazamuddin slit the neck, resulting in instantaneous

death of his brother. Nassem and Karim fired upon

him, but which did not hit them. Thereafter, all the

accused persons fled away. Admittedly this witness

reached near the deceased when the accused persons

fled away from the spot and saw his brother was

dead. His brother Sahabuddin went to police station.

Thereafter, police arrived at the place of occurrence.

This witness has also admitted in his cross-

examination that accused Nisafuddin Ansari is his

own brother, who is constable in JAP, Jamshedpur

and also admitted that at the time and date of

occurrence, he was on duty at Barwadih. This witness

again confirms in his cross-examination that gadasa

was given to Sarfuddin (deceased) from front side

causing cut injuries on mouth also. Thereafter, he fell

down on earth. He also admits that at the time of

occurrence, no other persons were going, rather it was

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lonely place and except this witness, his nephew and

brother, no one has seen the occurrence. In his

evidence also, he has not disclosed the name of his

nephew, who was boarding on the career of his cycle.

32. Another eye-witness P.W.-5 Fakruddin Ansari, Son of

Sahabuddin Ansari has stated that Nazamuddin

Ansari gave gadasa blow on neck from behind of the

deceased while he was driving cycle. Thereafter,

Mazamuddin Ansari, Bara Sarfuddin, Karim Ansari

and Naseem Ansari also arrived, they caught hold of

the deceased, then Mazamuddin Ansari slitted the

neck of Chhota Sarfuddin causing his instantaneous

death. He was also present at the distance of 20 steps

along with his uncle P.W.-3. According to him, when

first blow was given to the deceased by Sarfuddin,

they did not raise any alarm and when neck was

slitted by knife then they raised alarm and accused

persons fled away. When accused persons fled away

then he along with uncle (P.W.-3) went near the

deceased. He again has given contradictory statement

in his cross-examination that both gadasa blow and

knife blow was seen by them from a distance of 500

steps. Although, both of these witnesses claim that

they were just behind the deceased on different cycle

at a distance of 20 steps throughout the incident. This

witness has stated in his statement under Section

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161 Cr.P.C. that Naseem and Karim caught hold of

hand and Nazamuddin and Bara Sarfuddin caught

hold of his legs, then Mazamuddin slitted the neck by

knife of the deceased. P.W.-4 Jalaluddin Ansari

reached at the place of occurrence just after the

incident and saw the deceased, his neck was

completely cut. He has also admitted that his village

is naxal infested area and several persons have been

murdered by the people of Naxalite organization,

which fact is also admitted by P.W.-3.

33. As per evidence of P.W.-3 and P.W.-5, who were all

along at a distance of about 20 steps behind from the

deceased have given completely different story from

each other. According to P.W.-3, gadasa blow was

given by Nazamuddin from front side causing injury

on mouth also to the deceased. According to P.W.-5

one gadasa blow was given from behind on the neck

to the deceased. Both the witnesses have consistently

stated that second blow was given by knife by

Mazamuddin slitting the neck then other co-accused

persons were holding both hands and both legs of the

deceased. Sahabuddin Ansari, who according to

informant went to police station to inform about the

incident, has not been examined in this case.

34. The evidence of P.W.-3 and P.W.-5 could not be

reconciliated with the evidence of P.W.-11 Dr. Mahesh

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Prasad Singh, who has specifically opined that the

injuries was caused by single blade might be use of

gadasa and no injury on mouth and face was noticed

during post-mortem of the deceased.

35. The learned trial court has tried to differ with the

opinion of the doctor without recording any special

reasons for such disagreement as observed in Para-

14, 15, 16 & 17 of the judgment as under:-

"14. On close scrutiny, I find that cut injury of lower part of ear shows that the blow of sharp edged weapon (Gadasa) was inflicted from back side.

15. This court slightly differs from the opinion of Medical Expert on only the point i.e. injuries were caused by a single blow of Gadasa, due to scientific reasons.

(i) Chhota Sarfuddin (deceased) was in inertia of motion and single blow inflicted by accused from the back side cannot create so much resistance against neck to cause such type of injury because both Garasa and Sarfuddin (deceased) were moving in same direction. (In case if Garasa and cyclist are moving with same speed in same direction, no injury will be caused).

(ii) Injury mentioned in P.M. report i.e. "Whole chopped head attached with lower part by 1 ½"

wide flap of skin" can never be caused by inflicting SINGLE BLOW OF GARASA (heavy) UNLESS there must be FIXED AND HARD SUPPORT on the other side of neck to create high resistance and I am also of view that above mentioned injury can never be caused by inflicting a single blow of Tangi due to its shape,

2026:JHHC:10909-DB

size and above mentioned conditions.

16. But I have to see what are the compelling circumstances before doctor for such opinion and what are the consequences of such opinion.

Medical Experts finding that the A.M. injuries mentioned in P.M. report were caused by SINGLE BLOW shows another aspect that he found only one injury of chopping, it also excludes second blow of Gadasa but above scientific reason suggests that there must be second cut injury by sharp edged weapon (dagger) in the hole of first cut injury made by Gadasa. Thus both injuries were caused by sharp edged (as explained by P.W.-3 in para-38/39 of cross-examination) in overlapping form, creates difficulty before Medical Expert (who is not witness of fact) for his opinion (i.e. injuries were caused by single blow) without knowing the facts and circumstances of this case.

17. On above discussion, I irresistibly opine that injuries mentioned in P.M. report, Expert opinion and scientific reasons confirm two things (i) Use of at least one more sharp edged weapon (dagger) (ii) Involvement of at least two accused persons.

36. Above reasons recorded by the learned trial court does

not find support from any reference of medical

jurisprudence, more over it is simply a guess work

and imagination of the learned trial court, although

the Evidence Act has equipped with wide powers to

the court to ask any question from any witness

including the Expert Witness in order to know the

truth. Surprisingly at the time of cross-examination of

P.W.-11 Dr. Mahesh Prasad Singh, the learned trial

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court having no different opinion has not got

explained by the Expert witness i.e. Doctor with a

view to remove his confusion. In the factual aspect

also both P.W.-3 and P.W.-5 have differed in material

particulars as regards inflicting gadasa blow either

from behind or from front side to the deceased. The

second episode of catching hold of the deceased by

four persons and slitting the neck by knife is also not

corroborated by medical evidence.

37. Apart from material contradictions regarding manner

of infliction of injuries and weapons used by the

accused persons, the prosecution has not been able to

prove any inimical terms between the present

appellants and deceased or any previous attempt of

murder of the deceased and pendency of any case

rather the defence vide Exhibit-C & Exhibit-D has

been able to prove that the witnesses P.W.-3 and

P.W.-5 were in inimical terms with other co-accused

persons, who were falsely implicated in this case. The

learned trial court itself has not believed the version of

firing by pistol upon the witnesses and acquitted

those accused persons. The presence of P.W.-3 and

P.W.-5, who are sole eye-witnesses of occurrence, at a

distance of 20 steps from the place of occurrence and

thereafter deviation from it, as noted above, also

creates doubt on their presence. As per FIR, brother of

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the informant Sahabuddin went to police station for

giving information about the occurrence, but he has

not been examined in this case reason best known to

the prosecution. The most crucial thing is that the

learned trial court has held guilty and convicted the

Bara Sarfuddin (appellant in Cr.A. (DB) No.

358/2003) for the charge under Sections 302/120B of

the I.P.C., but in the entire judgment, there is no

whisper as to with whom he conspired and there is no

evidence that Bara Sarfuddin has inflicted any blow to

the deceased even by farsa alleged to be borne by him.

No separate sentence has been awarded for offence

under Section 120B of the I.P.C. Similarly, as regards

conviction of appellants Nazamuddin Ansari and

Mazamuddin Ansari for the offence under Section 302

read with Section 34 of the I.P.C. has also not been

dealt with as to how they have acted in concerted

manner in furtherance of their common intention. It

appears that the learned trial court has picked and

choose different versions of the witnesses and

interpreted the same without evaluating the material

contradictions and infirmities appearing in the cross-

examination of the witnesses, which are mutually

contradictory of each other. We further find that the

learned trial court has committed serious illegality

while recording findings that the main eye-witnesses

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P.W.-3 & P.W.-5 have given consistent version of the

occurrence, which finds corroboration from P.M.

Report of the deceased in nicety. Therefore, we are of

the firm view that the learned trial court has

committed serious illegality while appreciating the

ocular testimony of witnesses (P.W.-3 & P.W.-5)

without considering the material contradictions

appearing in their evidence completely disbelieving

their truthfullness and reliability and also does not

find any corroboration from the P.M. Report of the

deceased. The learned trial court has also failed to

appreciate that the prosecution was lodged by

informant against his own brother who was under

inimical terms and criminal cases are also pending

wherein informant was accused. Several innocent

persons were dragged in this case and acquitted after

trial.

38. In view of above discussion and reasons, we are

constrained to set aside the impugned judgment of

conviction and order of sentence passed by the

learned trial court. Appellants are acquitted from the

charges levelled against them. Accordingly, both the

appeals are allowed.

39. The appellants are on bail. As such, they are

discharged from the liability of bail bonds and

sureties shall also be discharged.

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40. Pending I.A., if any, stand disposed of.

41. Let a copy of this judgment along with trial court