Salim Mian And Ors. Vs State of Jharkhand

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 303 of 2002

[ Against the Judgment of conviction dated 13.05.2002 and Order of sentence dated 15.05.2002 passed by learned 9^th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 331 of 1990 ]

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Salim Mian.

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Ilyas Mian.

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Both sons of Late Dallu Mian.

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Mahboob Mian.

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Anwar Main

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Both son of Rasool Mian.

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All residents of Village – Ragdih Tola Tand, P.S. – Barkatha, District – Hazaribagh.

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… … Appellants Versus The State of Jharkhand … … Respondents ….. For the Appellant : Mr. Sahil, Amicus Curiae . For the Respondent : Mr. Vineet Kr. Vasistha, Spl.P.P.

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P R E S E N T

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HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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JUDGMENT

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C.A.V. on 18.08.2025 Pronounced on 01.09.2025

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Per Pradeep Kumar Srivastava, J.

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1. The instant criminal appeal has been preferred by the appellants for setting aside their judgment of conviction dated 13.05.2002 and order of sentence dated 15.03.2002, passed by learned Additional Sessions Judge-IX, Hazaribagh in Sessions Trial No. 331 of 1990, whereby and whereunder, the appellants

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have been held guilty and convicted for the offences under Sections 147, 148, 149, 302, 427 of the I.P.C. and sentenced to undergo R.I. for life for the offence under Section 302 of the I.P.C., R.I. of two years each for the offences under Section 147/148 of the I.P.C. and R.I. of one year for the offence under Section 427 of the I.P.C. and all the sentences were directed to run concurrently.

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2. We have heard the argument of Mr. Sahil, learned counsel for the appellants as well as Mr. Vineet Kumar Vashistha, learned Spl.P.P. for the State.

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3. The original appellant no. 5 namely, Rasool Mian, S/o Late Tipan Mian has died during pendency of this appeal and his appeal has been abated vide order dated 11.06.2025.

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4. The appeal is heard in respect of four alive appellants namely, Salim Mian, IIyas Mian, Mahboob Mian and Anwar Mian.

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5. Learned counsel for the appellants assailing the impugned judgment and order of sentence of the appellants has submitted that altogether seven witnesses were examined in this case in order to substantiate the charges leveled against the appellant. Out of them, P.W.-1 has been declared hostile, P.W.-2

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is the Doctor, who has conducted autopsy on the dead body of the deceased. P.W.-5 is a formal witness and not a witness of fact. P.W.-7, whose name is mentioned in the FIR as eye-witness, has been tendered by the prosecution. Similarly, one of the eye witnesses mentioned in the FIR namely, Sahida Khatoon has been examined as a court witness, but stated nothing about the incident expressing her no knowledge. The I.O. has not been examined to prove actual place of occurrence.

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6. It is further submitted that the prosecution case rest on the evidence of P.W.-3 Rahman Mian, who is son of the deceased, P.W.-4 Liyakat Mian is the informant of this case and P.W.-6 Abdul Mian is nephew of the deceased. The evidence of these witnesses suffered from material contradictions and discrepancies, which clearly goes to show that they were not present at the place of occurrence and have not seen the actual assault given to the deceased by any of the miscreants. The learned trial court has miserably failed to consider properly that as per the evidence of P.W.-3, 4 & 6 at the time of occurrence, they were inside the room bolted from inside and there was no occasion to go at the place of occurrence. They have

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stated that after assaulting their father, the appellants surrounded the house of the informant and pelted about 1½ quintals of stones causing damage to the roof tiles. They have also failed to specify any overt act against any of the appellants except general and omnibus allegations due to previous land dispute and pendency of civil litigations between the parties. Their testimony also suffers from inherent improbabilities. The learned trial court has based its judgment of conviction only on the basis of testimony of P.W.-3, 4 & 6, which is evidently not reliable, as such, the impugned judgment is liable to be set aside and this appeal may be allowed.

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7. On the other hand, learned Spl.P.P. appearing for the State has submitted that the eye-witnesses are most natural witnesses and close relative of the deceased, their presence on the place of occurrence cannot be doubted and in their cross-examination also, nothing elicited to disbelieve their testimony. It is case where all the appellants forming an unlawful assembly have brutally assaulted to deceased by lathi, danda and stones. Therefore, conviction and sentence of appellants is based on sound reasons and evidence available on record. There is no legal force in the

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points of argument raised on behalf of the appellants and no merits in this case, which is fit to be dismissed.

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8. We have gone through the record of the case along with impugned judgment of conviction and order of sentence of the appellants in the light of contentions raised on behalf of both sides.

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9. It appears that the FIR (Exhibit-3) was instituted on the basis of fardbeyan of informant Liyakat Mian (P.W.-4) stating inter alia that on 11.06.1989 at about 5.00 PM, his father Md. Rozan Mian had gone to market and returned by a bus at about 6:00 PM, he alighted at Bus Stand of his Village-Ragdih Tola Tand, from there he reached near field of Moin Khan just 100 yards away from the house of the informant, meanwhile, Salim Mian, Illias Mian, Alo Mian, Mahbud Mian, Anwar Mian, Rasool Mian, Dullo Mian hiding themselves at “Bansabari” of Moin Khan and came out and started assaulting to father of informant by lathi and danda, sustaining injuries, the father of the informant fell down on the ground. Thereafter, accused persons assaulting him on chest by stone. It is further alleged that when the informant raised alarm then above accused persons chased him to

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assault whereupon Rahman Mian and his brother Liyakat Mian (informant) due to fear rescued themselves entered into their house and shut the door. He has also expressed old enmity with the accused persons and previous litigation between the parties.

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10. After conclusion of investigation, charge sheet was submitted against the aforesaid appellants. The case was committed to the court of Sessions, where S.T. No. 331/1990 was registered. The accused persons denied the charges leveled against them and claimed to be tried, therefore, trial proceeded.

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11. In course of trial, altogether seven prosecution witnesses and one court witness were examined in this case.

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Apart from oral testimony of witnesses, following documentary evidence have been adduced by the prosecution:-

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Exhibit-1 : Post-mortem Report. Exhibit-2 : Signature of informant-Liyakat Mian on the FIR. Exhibit-2/1 : Signature of Abdul Mian on the FIR. Exhibit-2/2 : Signature of Abdul Mian on the Inquest Report.

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Exhibit-3 : FIR.

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12. On the other hand, the case of defence is denial from occurrence and false implication due to previous land dispute and enmity between the parties. No witness has been examined by the defence. However, following documentary evidence has been adduced by the defence.

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Exhibit-A	: FIR of S.T. No. 291/87.
Exhibit-A/1	: FIR of S.T. No. 239/93.
Exhibit-B	: Charge-sheet of S.T. No. 291/87.
Exhibit-B/1	: Charge-sheet of S.T. No. 239/93.

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13. The learned trial court, after evaluating and scrutinizing the evidence led by the prosecution as well as defence recorded the finding of guilt of accused persons for the aforesaid offences and sentenced them as stated above.

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14. It appears that the Liyakat Mian , informant although claiming himself to be eye-witness and examined as P.W.-4 has improved the story in his evidence stating that his father had gone to market for bringing one bag salt. Hence, he along with his brother Rahman

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Mian (P.W.-3) went to bring his father from the bus stand, meanwhile, seven accused persons named in the FIR suddenly came out from the bushes and Salim Mian assaulted his father by stone and rest accused persons assaulted his father by lathi, due which his father fell down. The accused persons also chased them for assaulting, but they fled away and came to their house and concealed themselves by bolting the door from inside. In his examination-inchief, this witness admits that in the evening mothers of Kadir and Kasim came to his house and informed about death of his father. When the accused persons heard that his father has died then they fled away, stopped pelting stones on his house. This witness went to place of occurrence, which is field of Moin Mian at Ragdih Tola and saw the dead body of his father. He also admits that the occurrence was seen by Rahmat Mian, Abdul Mian and mother of Kasim Mian and all these witnesses have not been examined by prosecution. He lodged the FIR in the same night of occurrence at about 3-3:30 A.M.

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In his cross-examination, he also admits that when the occurrence was happening, he reached there, but he was chased by the accused persons to

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assault him. Again, he states that at first, the accused persons assaulted to his father and due to which, he fell down, then accused persons chased him and due to fear, he returned to his home and bolted door from inside. He has further given a contradictory statement that when the occurrence was going on, he was present on the door of Abdul Mian, which is situated at a distance of 50 yards from the place of occurrence and saw the accused persons were assaulting to his father, but can’t say, who assaulted how many lathi blow, but someone assaulted 10 lathi, someone assaulted 20 lathi and someone assaulted 02 lathi. This witness also appears to be not believable eye witness of the case as he states that in his statement before police that when the villagers assembled at his house, then he came out and went to see his father. He also admits that accused Salim Mian has lodged a case of rape against his brother Rahman Mian. He also admits that the deceased was about 65-70 years old, but was not suffering from any aliment.

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15. P.W.-3 Rahman Mian. He is the brother of P.W.-4. He has stated that he heard hulla that someone else assaulting to his father then he went to place of occurrence and saw that accused persons Salim

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Mian, Jhalo Mian, Imtiaz Mian, Dullo Mian, Rasool Mian, Mehboob Mian and Anwar Mian were assaulting to his father. He further admits that his brother Liyakat Mian (P.W.-4) reached the place of occurrence prior to this witness. Where Liyakat also chased by accused for assaulting. This witness also scared and rushed towards his home along with his brother Liyakat and bolted the door from inside and kept concealed. Thereafter, accused persons started pelting stones in the house and also damaged the tiles of the roof by lathi.

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Attention of this witness has been drawn towards his statement before police wherein he has stated that they were in their house and after villagers assembled then they came out and went to the place of occurrence and saw the dead body of his father and he denied the suggestion that due to enmity with the accused persons have lodged this false case.

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16. P.W.-6 – Abdul Mian : He is the nephew of the deceased. He has proved his signature on the fardbeyan as Exhibit-2/1. He has also witnessed inquest report and proved his signature as Exhibit2/2, although in his examination-in-chief, he has stated that he has seen the occurrence of assault

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given to the deceased by the accused persons, but in his cross-examination specifically states that the deceased Rozan Mian was his uncle and he saw his dead body in the evening at 6-7 PM. At the time of occurrence, he was present at his home. He has not given any vivid description about the happening of the occurrence.

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17. P.W.-2 is Dr. Imran Ahmad Khan , who has conducted autopsy on the dead body of the deceased Rojan Mian, aged about 70 years and found following injuries and bruises on the back of the body:-

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(a) vertically on right scapula 4” x ½”.

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(b) Horizontally on tobe scapula 5” x 2”.

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(c) vertically in between two scapula 4” x 1½”.

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(d) Horizontally 2” below no. (b) 4” x 2”.

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(e) Horizontally lumber area 3 ½” x 1”.

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(f) Horizontally on right lumber region 6” x 2”.

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(g) Horizontally in thorasic vertebral region 2”x1”.

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(h) Horizontally on right side of waist 3” x 2”.

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(i) Horizontally on left side of the wrist 3½”x1 ½”.

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(j) Horizontally on the sacral region 3” x 1”.

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In this cross-examination, this witness has stated that fracture and torn injuries were grievous in nature and the injuries were caused by hard and blunt substance. The post-mortem report was identified by him and marked as Exhibit-1.

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18. From the trend of testimony of purported eyewitnesses of this case P.W.-3, 4 & 6, we find that there are clear cut contradictions, inconsistencies, description and improvement in material particulars regarding their presence and fetching the occurrence rather they heard hulla that their father is being assaulted by so many accused persons found remained in their house and after the occurrence, some villagers informed about death of their father then they went to place of occurrence and saw the dead body of deceased from 100 yards away from their house. The claim of eye witnesses that they have seen occurrence by 50 yards, but due to fear, they returned to home and also contradictory statements as to when these witnesses reached, the deceased had already fallen down after sustaining injuries and thereafter improving that while assault was given, they have seen. The manner of assault has also not

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been stated in clear terms. Long drawn enmity and litigations between the parties has been admitted. It further appears that not a single witness, during the investigation of the case have claimed to see the occurrence and even during trial the independent witnesses, whose name were disclosed in the FIR as eye witnesses of occurrence, have also not supported the prosecution case. Although the deceased died due to assault caused to him on the date of occurrence, but there is no concrete evidence showing involvement of the present appellants.

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19. We further find that all the appellants are individually convicted for offence under Section 302 of the I.P.C. without aid of Section 149 of the I.P.C. and there is no discussion at all as to what was the common object of the appellants in prosecution of which they have caused murder of the deceased. The evidence of P.W.3, 4 & 6 does not inspire confidence and in our considered view the testimony of these witnesses cannot be acted upon without further corroboration from independent source, which is absolutely lacking in this case.

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20. In view of aforesaid discussion and reasons, we find merits in this appeal and arrived at conclusion that the learned trial court had miserably failed to properly scrutinize the evidence of eye witness P.W.-3, 4 & 6 in the light of materials elicited in their crossexamination indicating self-contradictory statement rendering their presence on the spot doubtful. Accordingly, the impugned judgment of conviction and order of sentence is set aside.

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21. This appeal is allowed and the appellants are acquitted from the charges levelled against them. The appellants are set at liberty forthwith.

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22. Appellants are on bail. They are discharged from the liability of bail bond and sureties shall also discharged.

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

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24. We take this opportunity to appreciate the assistance rendered by Mr. Sahil, learned Amicus Curiae and direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to Mr. Sahil within a period of four weeks from the date of receipt / production of a copy of this order.

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25. Office is directed to ensure that a copy of this order is served upon Member Secretary, High Court Legal Services Committee.

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26. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.

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(Rongon Mukhopadhyay, J.)

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(Pradeep Kumar Srivastava, J.)