[Cites 5, Cited by 0]
Jharkhand High Court
Bhutka Mian vs The State Of Jharkhand on 27 January, 2026
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Neutral Citation
2026:JHHC:1959-DB
Criminal Appeal (SJ) No. 274 of 2003
(Against the judgment and order of conviction and sentence
dated 31.01.2003 passed by Sri Ram Babu Gupta, learned
Additional Sessions Judge, Fast Track Court No. 2, Deoghar in
Sessions Case No. 57/1999.)
1. Bhutka Mian, S/o Latif Mian.
2. Firoj Mian.
Both R/o Vill- Tabhaghat, P.S.- Jasidih, Dist.- Deoghar.
3. Israil Mian, S/o Kanchan Mian, R/o Vill- Gangti, P.S.-
Jasidih, Dist.- Deoghar. ... Appellants
Versus
The State of Jharkhand ... Respondent
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
----
For the Appellants : Mrs. Snehlika Bhagat, Amicus Curiae
For the State : A.P.P.
----
Dated : 27/01/2026
JUDGMENT
Per Rongon Mukhopadhyay, J. :
1. Heard Mrs. Snehlika Bhagat, learned Amicus Curiae for the
appellants and Mr. Pankaj Kumar, learned P.P.
2. This appeal is directed against the judgment and order of
conviction and sentence dated 31.01.2003 passed by Sri Ram
Babu Gupta, learned Additional Sessions Judge, Fast Track
Court No. 2, Deoghar in Sessions Case No. 57/1999 whereby and
whereunder, the appellants have been convicted for the offences
under Sections 395 and 397 IPC and have been sentenced to
undergo rigorous imprisonment for 10 years along with the fine
of Rs. 5,000/- and in default in payment of fine,to undergo simple
imprisonment for six months. The appellants have further been
sentenced to undergo rigorous imprisonment for 10 years along
with a fine of Rs. 10,000/- for the offence under Section 397 IPC
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and in default in payment of fine to undergo simple
imprisonment for six months. Both the sentences were directed
to run concurrently.
3. The prosecution case arises out of the fardbeyan of Kanti
Devi recorded on 17.08.1998 at Sadar Hospital, Deoghar in
which it has been stated that at 2:00A.M. in the night of 16/17-
08-1998, she was sleeping with her 12 year old daughter Roma
Kumari while in the outer room her husband Bhushan
Pathak was sleeping and all of a sudden, she heard a sound of
firing. It has been alleged that the informant came out of her
room where she found her husband shouting in his bed inside
the mosquito net that someone has shot at him. In the meantime,
two miscreants entered inside the room and one of them gave a
blow with a stone on the head of the informant and blood started
oozing out. The informant had taken her husband to the inside
room by which time, 5-6 miscreants had entered and started
breaking the door and this prompted the informant to somehow
take her husband to the puja room. The informant has further
alleged that from the puja room she could see the miscreants
opening the almirah and taking out various articles. After 15-20
minutes when all the miscreants had fled away, the informant
tried to come out of the room but since it was locked from
outside, she called out to her daughter who informed her
neighbours who came and opened the door. On coming out, the
informant could gather that the miscreants had taken away
several articles with them and the total value would be around
Rs. 15,000/-.
Based on the aforesaid allegations, Jasidih P.S. Case No.
150/1998 was instituted under Section 395 IPC against 10
unknown persons. On conclusion of investigation, chargesheet was
submitted under Sections 395 and 397 IPC and after cognizance
was taken, the case was committed to the Court of Sessions
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where it was registered as Sessions Case No. 57/1999. Charge
was framed under Sections 395 and 397 IPC which was read over
and explained to the accused in Hindi to which they pleaded not
guilty and claimed to be tried.
4. The prosecution has examined as many as eight witnesses
in support of its case:
P.W.1 Bhushan Kumar Pathak has stated that on
16.08.1998 at 2:00A.M., he was sleeping in the outer room of his
house when 8-10 dacoits entered inside the room after breaking
open the main door of his house. He had a scuffle with the dacoits
in course of which the clothes covering the face of 4-5 dacoits
were snatched by him and he had identified Bhutka Mian, Firoj
Mian and Israel Mian. Bhutka Mian had fired at him and the
bullet struck his right cheek. When on hearing the commotion
his wife arrived, she was struck on her head with a stone by the
dacoits which injured her. His wife had dragged him towards the
bedroom and closed the door from inside but when the dacoits
broke open the door of the bedroom, his wife had taken him to
the pooja room. The dacoits had taken away three VIP suitcases,
jewellery, clothes etc. His statement under Section 164 Cr.P.C.
was recorded. He has identified Bhutka Mian and Israel Mian in
the dock.
In cross-examination, he has deposed that he had a factory
at industrial area Jasidih which closed down in the year 1993.
The father of the accused Firoj Mian used to work in the factory.
The distance between his house and the house of Bhutka Mian
is about 100 feet. He has deposed that he had a scuffle with the
dacoits for five minutes. He was not shouting at the time when
the scuffle had taken place. Since he was struck by a bullet on
his cheek, he was not in a position to speak. He had become
unconscious and had regained consciousness after two days.
Even after regaining consciousness, he had not disclosed the
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name of Firoj Mian and Bhutka Mian to his wife because he was
not in a position to speak. He had not written down the names of
the dacoits and showed it to his wife. His statement was not
recorded by the Patna Police. Before giving his statement under
Section 164 Cr.P.C., he had not disclosed the name of the dacoits
to any person. He has deposed that he was fired at the place he
was sleeping. His wife had continued shouting for 30 minutes
even after the dacoits had left. One of his children was with him.
He had received an amount of Rs. 8,52,000/- from Bihar State
Financial Corporation towards financing of his factory and he
has neither returned the entire amount nor the interest
thereupon. A case has also been instituted by the Bihar State
Corporation against him in which he is on bail.
P.W.2 Dr. Nirmal Chandra Gandhi was posted at Sadar
Hospital, Deoghar and on 17.08.1998, he had examined
Bhushan Pathak and had found the following injuries on his
person:
(i) Lacerated injury on right cheek with charred margin
3" x 1½" with numerous small lacerated injuries all
over the face (in right side of face).
ii) Swelling right side Jaw, chin, neck and upper part of
chest.
Nature of Injuries :- Injury no. 1 was caused by a bullet
and small injuries were due to pellets for injury no. 2.
Was caused by bullet and was grievous.
On the same day, he had examined Kanti Devi and had
found the following injuries on her person:
(c) Lacerated cut wound on her head posteriorly 3"
X1/2" X scalp deep, simple in nature, caused by hard
and blunt substance.
He has proved both the injury reports which have been
marked as Exhibit-1 and 1/2 respectively.
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In cross-examination, he has deposed that the injury
sustained by Kanti Devi could have been caused due to fall on a
hard substance.
P.W.3 Kanti Devi is the informant of the case who has
stated that on the date of occurrence at 01:00-02:00AM, she was
sleeping in her bedroom along with her daughter and her
husband was sleeping in the outer room of the house when she
heard the sound of firing and on coming out, she had seen her
husband groaning and two miscreants standing besides him.
One of the miscreants had hit her on her head with a stone which
injured her. She had dragged her husband to another room and
locked it from inside and when the miscreants tried to break open
the door, she took her husband to the pooja room and locked it
as well. The miscreants had entered in her bedroom and had
taken away various articles. Her daughter had called Mukesh
Singh who had arrived and opened the door. She had taken her
husband to Deoghar Hospital where her fardbeyan was recorded
by the Police. She has proved her signature in the fardbeyan
which has been marked as Exhibit-2. She has also proved the
signature of Ghanshyam Dubey on the fardbeyan which has been
marked as Exhibit-2/1. She has identified Israel Mian in the
dock.
In cross-examination, she has deposed that 20 years prior
to the incident she used to reside along with her family members
in the industrial area. She woke up from her sleep on hearing the
sound of firing. Her daughter had also woken up. Both had come
outside and she had seen the bulb burning in the room of her
husband. There was blood in the mosquito net as well as in the
mattress. Blood was also lying on the floor. Her husband had not
become unconscious, but was wriggling with pain. Her husband
was operated upon in Madras and the bullet which had struck
the cheek was taken out. The said bullet was never given by her
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to the Police. Her statement was twice recorded by the Police. She
has deposed that when she had entered the room of her husband,
she found him lying inside the mosquito net.
P.W.4 Shyam Narain Singh was posted at Jasidih P.S.
and on 17.08.1998, he had received the fardbeyan from the
Officer-in-charge, after which Jasidih P.S. Case No. 150/1998
was instituted. He has proved the fardbeyan which has been
marked as Exhibit-3. The formal FIR has been proved and
marked as Exhibit-4. He was entrusted with the investigation of
the case. He has proved the Police Requisition of the injured
Kanti Devi and Bhushan Pathak which have been marked as
Exhibit-5 and 5/1 respectively. In course of investigation, he had
recorded the re-statement of the informant but could not record
the statement of Bhushan Pathak as he was not in a position to
speak. He had inspected the place of occurrence which is the
residential house of Kanti Devi which is adjacent to the factory
and where the informant resided with her husband and
daughter. The second place of occurrence are the shacks of
Subodh Mandal and Saryu Jha which was situated at a distance
of 1000 yards from the first place of occurrence. He had recorded
the statement of Saryu Jha, Anil Kumar Jha and Subodh
Mandal. He had recorded the statement of Bhushan Pathak on
28.10.1998. The statement of Bhushan Pathak was recorded
under Section 164 Cr.P.C. He had taken steps for attachment of
the property of the accused persons and the said requisitions
have been marked as Exhibits-6, 6/1 and 6/2.
In cross-examination, he has deposed that the informant
had stated about seeing the dacoits and though he had tried to
conduct a T.I.P., but the informant never came. Not a single
article said to have been looted were recovered from the house of
any of the accused. He had not seized the blood stains cloths of
Bhushan Pathak. There was blood found on the floor, but the
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same was not mentioned in the diary. The informant had not
taken the name of the dacoits in her re-statement. The fired shell
was not recovered. He had not recorded the statement of the
minor daughter of the informant and had also not recorded the
statement of the persons of the locality.
P.W.5 Subodh Mandal has stated that in the night of the
incident he was sleeping in his room in Jasidih Industrial Area
when on hearing a commotion, he came out from his room and
went to the adjoining room of Saryu Jha from where he witnessed
some dacoits fleeing away. The dacoits by breaking open the latch
of his door had entered inside and had taken away Rs. 4,000/-
in cash and clothes worth Rs. 2,000/-. He had seen the face of
the dacoits from the light emanating from a lamp. After some
time, the son of Saryu Jha had disclosed that the dacoits had
entered into the house of Bhushan Pathak and Bhushan Pathak
had been fired upon by them.
In cross-examination, he has deposed that Police had not
conducted a Test Identification Parade of the accused.
P.W.6 Nitya Nand Kumar has proved the fardbeyan
which has been marked as Exhibit-6. He has also proved the
requisitions of the injured Kanti Devi and Bhushan Pathak which
have been marked as Exhibits-7 and 7/1 respectively.
In cross-examination, he has deposed that the informant
had not taken the name of any of the accused in the fardbeyan.
P.W.7 Saryu Jha has stated that he was sleeping in his
room when on the sound of a commotion, he woke up. The
dacoits had taken away a box containing clothes and they had
also taken away a box from the house of Subodh Mandal. He has
stated that a dacoity was committed in the house of Pathak Ji
and he was shot at by the dacoits.
In cross-examination, he has deposed that his statement
was recorded by the Police.
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P.W.8 Awdhesh Kumar Mishra was posted as a Judicial
Magistrate 1st Class, Deoghar in Civil Court, Deoghar and on
28.10.1998 he had recorded the 164 Cr.P.C. statement of
Bhushan Kumar Pathak. He has proved the 164 Cr.P.C.
statement of Bhushan Kumar Pathak which has been marked as
Exhibit-9.
5. The statements of the accused were recorded under
Section 313 Cr.P.C. in which they have denied their complicity in
the commission of the offence.
6. Mrs. Snehlika Bhagat, learned amicus curiae has
submitted that the learned trial court has misdirected itself while
recording conviction of the appellants despite there being no
evidence available on record. It has been submitted that the
appellants were not named in the First Information Report and
only on account of a belated disclosure made by P.W.1, they have
been implicated. Mrs. Bhagat has drawn the attention of the
court to the evidence of P.W.1, P.W.3 and P.W.4 and has
submitted that there are glaring inadequacies in the prosecution
case with respect to the manner of occurrence as well as the
identification of the appellants as being involved in the
commission of dacoity. The incident had occurred at 02:00AM,
when the informant and their family members were asleep and
this would make the identification more improbable. Mrs.
Snehlika Bhagat, learned amicus curiae has also strongly relied
on the evidence of the Investigating Officer (P.W.4) who has stated
about P.W.3 not turning up for the Test Identification Parade and
according to the learned amicus, the entire sequence of events as
depicted by the prosecution witnesses speaks of false implication
of the appellant and the relative connection of the incident with
the non-repayment of loan and interest by P.W.1 to the Bihar
State Financial Corporation. In the touchstone of her
submissions, a prayer has been made to set aside the judgment
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of conviction and order of sentence recorded against the
appellants.
7. Mr. Pankaj Kumar, learned P.P. has supported the
impugned judgment and order of conviction and sentence by
pointing to the fact that a dacoity had indeed taken place wherein
P.W.1 was shot at and P.W.3 also suffered injuries on her head
which has been duly corroborated by the injury reports. A
suitable explanation has been given by the prosecution with
respect to the delayed disclosure of the name of the appellants
by P.W.1 as he was undergoing treatment and was not in a
position to speak.
8. We have heard the learned counsel for the respective parties
and have also perused the trial court records.
9. An incident of dacoity leading to a firearm injury suffered
by the husband of the informant led to institution of a First
Information Report. The same was lodged against unknown
persons but in course of investigation, the culpability of the
appellants came to light by virtue of the belated statement of
P.W.1 under Section 164 Cr.P.C. followed up by his evidence
during trial. P.W.1 has given a vivid description of the incident
including the scuffle which took place with the dacoits leading to
unmasking of their faces and the consequent identification of the
appellants by P.W.1. The primal argument of the learned counsel
for the appellants seems to have been focused on the
identification of the appellants. As we have noticed above, the
First Information Report was lodged against unknown accused
and in her evidence as P.W.3, the informant has not deviated
from the said path. Any doubts regarding the identification of the
appellants could have been set at rest had a Test Identification
Parade been held. Attempts though were made for conducting a
Test Identification Parade by P.W.4 as per his evidence, but the
same proved futile on account of the informant not turning up to
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attend the same. When we revert back to the evidence of P.W.1,
we find that P.W.1 had scuffled with the dacoits after which he
was shot at by the appellant Bhutka Mian on his cheek, but when
we consider the evidence of P.W.3 we find that in her cross-
examination, she has deposed that when she entered the room,
she found P.W.1 lying inside the mosquito net which would
suggest that he was fired upon while being in his bed and inside
the mosquito net which belies the story set up by P.W.1.
Moreover, P.W.4 has deposed that he has not mentioned in the
diary that there were bloodstains found on the floor of the
bedroom. P.W.4 had also not seized the bloodstained cloths of
P.W.1. He has also not seen any bloodstains in between the
rooms of P.W.1 and P.W.3. There is no mention of seizure of the
mosquito net and bloodstains found on the mattress. He had not
recorded the statement of the persons from the neighbourhood
and even the daughter of the informant who is also an eyewitness
was never made a witness. It also appears that the house of the
appellants were searched, but admittedly nothing incriminating
were recovered. The incident as we have noticed above took place
in the dead of night and a sudden act of violence when the entire
family members were in a deep slumber reduces the instinct of
identification which is further fortified by absence of any seizure
of gumchas worn to hide the identity or any bloodstained articles
or for that matter any consistency in the testimony of P.W.1 and
P.W.3. So far as the investigation conducted in the case is
concerned, the less said the better. There has been a total dearth
of evidence invoked from the side of the prosecution and the
contradictory features of the case highlighted by us have not
been appropriately appreciated by the learned trial court and as
a consequence, therefore, we hereby set aside the judgment and
order of conviction and sentence dated 31.01.2003 passed by Sri
Ram Babu Gupta, learned Additional Session Judge, Fast Track
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Court No. 2, Deoghar in Sessions Case No. 57/1999.
10. This appeal is allowed.
11. Since the appellant(s) are on bail, they are discharged from
the liability of their bail bonds.
12. Pending I.A.(s), if any, stands closed.
13. We take this opportunity to appreciate the assistance
rendered by Mrs. Snehlika Bhagat learned amicus curiae and
consequently, we direct the Member Secretary, Jharkhand High
Court Legal Services Committee to extend an amount of Rs.
10,500/- to the learned amicus curiae within a period of three
weeks from the date of receipt/production of a copy of this order.
Office is directed to send a copy of this order to the learned
Member Secretary, Jharkhand High Court Legal Services
Committee immediately and forthwith.
(RONGON MUKHOPADHYAY, J.)
(PRADEEP KUMAR SRIVASTAVA, J.)
Jharkhand High Court, Ranchi
Dated the 27th Day of January, 2026.
Preet/N.A.F.R.
Uploaded on: 27 /01/2026.
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