Sk. Zafruddin Alias Md. Zafruddin Vs State

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (D.B) No. 292 of 1996 (P)

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Cr. Appeal (D.B) No. 381 of 1996 (P)

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( Against the judgement of conviction dated 28.06.1996 and the order of sentence dated 29.06.1996 passed by the learned 1^st Additional Sessions Judge, Godda in Sessions Case No. 77 of 1986/10 of 1995)

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Sk. Zafruddin @ MD. Zafruddin Son of Sk. Karmulli, resident of Jaju (Jajudih), PS-Dhoraiya, DistrictBanka ....... … Appellant

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[In Cr. Appeal (D.B) No. 292 of 1996 (P)]

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Sk. Safeed @ Sukharu son of Sk. Karmulli, resident of Village-Firozpur, PS-Mahagama, District-Godda ….. ……. Appellant

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[In Cr. Appeal (D.B) No. 381 of 1996 (P)]

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Versus

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The State of Bihar (now Jharkhand) … … Respondent (in both the cases)

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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------For the Appellants : Mr. Manoj Kumar Sah, Advocate For the State : Mrs. Priya Shrestha, Spl.PP

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C.A.V On 28.04.2025 Pronounced on 13/06/2025

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Per Sujit Narayan Prasad, J.

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The instant appeal under section 374(2) of the Code of Criminal Procedure is directed against the judgment of conviction dated 28.06.1996 and the order of sentence dated 29.06.1996 passed by the learned 1^st Additional Sessions Judge, Godda in Sessions Case No. 77 of 1986/10 of 1995 whereby and whereunder the appellants, above-named, have been convicted under sections 148, 302/149 and sections 307/149 of the Indian

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Penal Code and sentenced to undergo RI for three years for the offence under section 148 of the Indian Penal Code, imprisonment for life under section 302 read with section 149 of the Indian Penal Code and RI for life for the offence under section 307 read with section 149 of the Indian Penal Code and all the sentences shall run concurrently.

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At the outset, it needs to mention here that in Criminal Appeal No. 292 of 1996 out of seven, only one appellant, namely, Sk. Zafruddin @ MD. Zafruddin is alive and the rest appellants had died during pendency of the appeal. Vide orders dated 18.6.2019, 24.09.2019 and 27.01.2025 passed in the present proceeding, the present criminal appeal qua the appellants, namely, Sk. Maniruddin, Sk. Mansoor, Sk. Suleman, Sk. Sahabuddin @ MD. Shahabuddin and Sk. Shamsuddin @ Md. Shamsuddin stands abated.

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The prosecution story in brief as per the allegation made in the fardbeyan by Fakruddin, the informant, reads as under:

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(i) On 17.10.80 the informant was deposing in the hospital at Godda that on 16.10.1980 at 7 AM in the morning he had gone to harvest paddy crops along with his father Sk. Badruddin and brotherNaziruddin. While they were harvesting paddy his brother-in-law, named, Mazaharul Haque (PW2) was being chased by accused persons. It had further been alleged that Sk. Karmulli armed with Bhala, Sk. Safeed @ Sukharu armed with Bomb, Sk Zafir armed with lathi, Sk Shahabuddin armed with bomb, Sk Allauddin armed with pipe gun, Sk. Suleman armed with lathi, Sk. Shamsuddin armed with bomb, Sk. Faizuddin armed with lathi, Sk. Tauhid and Sk. Noor Mohammad armed with lathi, Sk. Maniruddin armed with bomb, Sk. Mansoor armed with lathi and two to three other unknown persons armed with lathi and Bhala were chasing Md.

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Mazharul Haque towards the place where the informant was harvesting paddy. As soon as Md. Mazharul Haque came to the east of the field of harvesting, accused, named, Safeed @ Sukharu hurled bomb hitting Mazharul Haque on his back and Karmulli hit him with lathi. Other accused persons assaulted him with lathi. When Mazharul Haque fell down the accused persons named above came to the paddy field and exhorted that the informant and others be killed. Sk. Karmulli, Sk. Zafir and other accused persons assaulted his father Badaruddin with Bhala and lathi. His father fell down and became senseless. Thereafter, Sk. Karmulli gave Bhala blow to the informant and Sk. Safeed @ Sukharu hurled bomb on him. Sk. Zafir and other accused persons assaulted him with lathi. The informant also fell unconscious. The splinters of bomb hit the informant on his stomach. The informant and others lied senseless in the field.

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(ii) Later on village Chaukidar Khoka Paswan and some others put them on cot and carried to Basantrai out post. From there they were shifted to Pathargama hospital. As they were senseless, they could not give any description about the occurrence. Sk. Badruddin died because of assault near place, named, Nunajore. The informant and others were carried to Godda hospital where they were given treatment. The witness to the occurrence is named, Sk. Gulam Rashul, Sk. Shahabuddin and Sk. Marshud etc.

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(iii) After investigation, the police submitted the charge sheet against the appellants for offences under sections 302/149, sections 307/149 IPC and section 148 IPC, thereafter, the case was committed to the

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court of Sessions. The statements of the appellants were recorded under Section 313 of Cr.P.C.

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Accordingly, the trial proceeded and the appellants were found guilty by the learned trial Court for the aforesaid offences referred hereinabove . The aforesaid order of conviction and sentence is under challenge in these appeals.

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Submission of the learned counsel for the appellants:

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Learned counsel for the appellants has taken the following grounds for interfering with the finding recorded by the learned trial Court in the impugned judgment:

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(i) The prosecution has miserably failed to establish the charge said to be proved beyond all reasonable doubt and the learned trial Court has also failed to appreciate that it is not a case where any ingredient of Section 302 I.P.C. is attracted.

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(ii) The further ground has been taken that the conviction is under sections 302 and 307 of the Indian Penal Code by taking aid of section 149 IPC but no any evidence in order to substantiate the common object among the appellants to the deceased has led by the prosecution, as such, there cannot be any conviction against the appellants, in absence of any specific overt act said to be committed by these appellants even if the entire prosecution version will be taken in to consideration in entirety.

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(iii) The argument has been advanced so far as the conviction under section 307 of the Indian Penal Code against these appellants is concerned.

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(iv) It has been stated that as per the allegation made in the F.I.R the deceased was assaulted by sharp cutting weapon like Bhala and as per the medical evidence death was caused due to the incised wound and since the present appellants were not armed with any sharp cutting weapon therefore conviction of the appellants under section 302 IPC with the aid of section 149 IPC is not sustainable. (v) It has been contended that as per the allegation, the appellant, namely, Sk. Safeed @ Sukharu has hurled bomb over the back of Mazharul Haque upon which he fell down, but there is no death caused due to hurling of bomb by this appellant and further the charge has not been framed under Section ¾ of the explosive substance Act .

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(vi) It has further been contended that it had been alleged that the appellant, namely, Sk. Safeed @ Sukharu hurled bomb upon PW2 but as per the medical evidence it would be evident that the opinion was reserved on the point of injury sustained by the bomb.

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(vii) It has been contended that as per the allegation made in the F.I.R there is no allegation against the appellant, namely, Sk. Zafruddin @ Md. Zafruddin that he was involved directly in the alleged crime and, as such, in absence of any specific overt act said to be committed by the appellant, namely, Sk. Zafruddin @ Md. Zafruddin conviction against the said appellant is not sustainable.

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The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that the judgment of conviction passed by the learned trial Court convicting the appellants under sections 148, 302/149 and 307/149 of the Indian Penal Code, therefore, is fit to be quashed and set aside.

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Submission of the learned Spl. Public Prosecutor for the State:

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While defending the judgment of conviction and sentence, the learned Spl. Public Prosecutor appearing for the State has defended the impugned judgment of conviction and order of sentence by taking the following grounds:

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(i) The conviction so far as under section 302 of the Indian Penal Code against the surviving appellants, namely, Sk. Zafruddin @ Md. Zafruddin a nd Sk. Safeed @ Sukharu does not suffer from an error, since, ample evidence has been produced by the prosecution. However, she has admitted the fact after going through the testimony of PW1, the informant, that the specific attributability of commission of crime of murder of the deceased is upon the accused-Sk. Karmulli (since dead) who had assaulted the deceased with Bhala due to which the father of the informant had died.

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(ii) The argument has been advanced that even accepting the aforesaid specific attributability said to be committed by Sk. Karmulli and Sk. Jamir who are not facing the trial, but even then the attributability committed by S k. Zafruddin @ Md. Zafruddin a nd Sk. Safeed @ Sukharu, the appellants herein, who have assaulted the deceased and as per the postmortem report, since the attributability is there to attract the ingredient of section 302 of the Indian Penal Code, hence, they are liable to be punished under section 302 of the Indian Penal Code with the aid of Section 149 IPC and, as such, the impugned judgment so far as the appellants, namely, Sk. Zafruddin @ Md. Zafruddin a nd S k. Safeed @ Sukharu is concerned, the same does not require any interference.

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(iii) The argument has been advanced that the ample material has been produced by the prosecuting agency who established the case under sections 302/149, 307/149 of the Indian Penal Code so far as the appellant, namely, Sk. Md. Safeed @ Sukharu is concerned since the fact has come in course of evidence produced by PW1, the informant, that he along with his father (deceased) and Md. Mazharul Haque have brutally been assaulted by the accused persons.

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(iv) The argument has also been advanced that PW1 (the informant) has supported the prosecution version of sustaining assault by these two appellants and to that effect injury report is also available showing the injury sustained by him. Hence, the conviction so far as the appellants, namely, S k. Zafruddin @ Md. Zafruddin and S k. Safeed @ Sukharu under section 307/149 of the Indian Penal Code is concerned, the same cannot be said to suffer from an error.

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The learned State counsel, based upon the aforesaid premise, has submitted that the impugned judgment so far as these appellants is concerned, does not suffer from any error and does not require any interference both under sections 148, 302/149 and 307/149 of the Indian Penal Code, hence the instant appeal is fit to be dismissed.

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Analysis

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We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial Court in the impugned judgment.

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We have also gone through the testimonies of the witnesses as available in the Trial Court Records as also the exhibits appended therewith.

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Learned trial Court, based upon the testimonies of witnesses, has passed the judgment of conviction and has convicted the appellants under Section 148, 302/149 and Section 307/149 IPC and sentenced them to undergo imprisonment for life for the offence under Section 302 r/w Section 149 IPC and further sentenced to undergo imprisonment for life for the offence under section 307 r/w section 149 IPC and both the sentences shall run concurrently.

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This Court, before considering the argument advanced on behalf of the parties, is now proceeding to consider the testimonies of witnesses which have been recorded by the learned trial Court.

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It is evident from record that in order to substantiate the case, the prosecution had altogether examined 11 witnesses and they were PW1Md. Fakruddin (informant), PW2-Sk Mazharul Haque(injured victim), PW3-Md. Naziruddin (son of the deceased), PW4- Khokha Paswan (chaukidar), PW5- Zubaida Khatoon (wife of the informant), PW6-Sk. Lateef (hearsay witness), PW7-Haneef (tendered witness), PW8-Md. Ghulam Rasool, PW9- Md. Tahir, PW10- Dr. Vijay Kumar Bhagat who was colleague of Dr. Anirudh Mandal who prepared the injury report and conducted postmortem examination over the dead body and PW11-Jagdish Chandra Yadav, is the third Investigating Officer of the case and had conducted investigation from para-14 to 23.

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PW1 is the informant who said to be an eye witness. He had supported the

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factum of assault upon the deceased by the accused persons. He has deposed that the deceased is his father and on 16.10.1980 at 7 AM, he along with his father (deceased), brother-Naziruddin and wife-Bibi Khetu Nisa was harvesting paddy crop of his plot. He stated that all of a sudden

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he saw that his brother-in-law-Mazharul Haque was being chased by 1214 accused persons. He identified Sk. Karmulli, Sk. Safeed, Sk. Zafir, Sk. Tauhid, Sk. Suleman, Sk. Maniruddin, Sk. Faizuddin and Sk. Mansoor out of them who were chasing his brother-in-law. He did not identify other 2- 3 persons who were accompanying the accused. He deposed that when his brother-in-law reached near the Eastern side of the paddy field, then accused-Sk. Safeed hurled a bomb hitting him on his back upon which he fell down. Thereafter, Sk. Karmulli assaulted him with Bhala. Sk. Zafir assaulted him with lathi along with other accused persons due to which Mazharul became unconscious. The informant and his family members tried to flee from the place of occurrence but they were caught by the accused persons who attacked upon them. The accused persons attacked Sk. Badruddin and assaulted him with Bhala and lathi. Thereafter, they attacked upon the informant. Sk. Karmulli assaulted the informant with Bhala and other with lathi. Thereafter, the accused persons fled away with the crops grown in the paddy field. On raising alarm, villagers and chaukidar of the village came at the place of occurrence and took them to Basantrai OP from where they were shifted to Pathargama hospital for their treatment. On the way, his father succumbed to his injury caused by the accused persons.

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This witness has deposed that he gave his fardbeyan before the police on the basis of which F.I.R was lodged against the accused persons. This F.I.R. has been marked as Exhibit-1 and two witness, namely, Sk. Suleman Rashul and Md. Maniruddin have put their signature over the same which have been marked as Ext.2 and 2/1.

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In cross-examination, this witness has admitted that there was a land

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dispute between his family and the accused persons, namely, Sk. Safeed,

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Sk. Zabir and Sk. Karmulli who are his agnates ( Gotiya ) and a suit for partition being Title Suit No.1/89 was pending for the same. He further stated that the rest accused persons are the relatives of these accused persons.

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At para-4 of his cross-examination, this witness has stated that when the accused person came chasing Mazharul Haque, informant and others were harvesting the paddy facing to east. He further stated that while Sk. Safeed hurled bomb he was facing west and the victim Mazharul Haque was 10 cubic away from him who was also facing west. He also stated that when the deceased was attacked by Sk. Karmulli the accused was facing west and he was facing east. He further stated that he was hit by Bhala while he was standing.

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PW2 is Sk. Mazharul Haque, the injured witness, who is brother-in-law of the informant. He has fully supported the prosecution version and corroborated the evidence of PW1. He has deposed that when he was at the door of in laws’ house of his sister, the accused persons, namely, Karmulli, Safeed, Zafir, Shamsuddin, Faizuddin, Suleman, Mansoor, Maniruddin, Shahabuddin, Noor Mohammad, Tauhid and others came there armed with lathi, bhala, pipe-gun and bomb. They exhorted that he (this witness) should be assaulted. He fled away towards the paddy filed of Sk. Badruddin and the accused persons chased him and reached there. While he came on the ridge of the field the accused hurled a bomb from behind hitting him on his back. He fell down. Thereafter, Sk.Karmulli gave him the Bhala blow hitting him on his ring finger of the left hand. Thereafter, the accused persons also assaulted him with Bhala upon which he became unconscious. When he got consciousness, he was informed by

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Sultan, Gulam Rasul Latif, Hanif and Nazir that after the occurrence the accused person assaulted his sister’s father-in-law, namely, Badruddin (deceased) and brother-in-law (informant). He was also informed that Badruddin died on the way to hospital. He has stated that his statement was recorded on 17.10.1980 in the hospital.

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During cross-examination, this witness has stated about the position of the door of the in laws’ house of his sister, the position of paddy field and about the paddy grown therefrom. He has further stated that on raising alarm, the villagers came there and after that, the accused persons fled away from the place of occurrence.

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PW3-Md. Naziruddin is another son of the deceased who has fully supported the prosecution case. He has deposed about the occurrence and stated that he was present at the place of occurrence.

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In his cross-examination, he has denied the suggestion that he has falsely narrated the occurrence. He stated that he was present at the place of occurrence and cutting the paddy crop. He has stated that the deceased was assaulted by the accused person due to which he died.

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PW4-Khokha Paswan was the Choukidar of the village. He has deposed that he was informed by Sk. Fakruddin (informant) about the occurrence. He did not remember the date or month of the occurrence. He deposed that upon information by Sk. Fakruddin when he reached the place of occurrence, he saw that villagers brought Badruddin (the deceased) on a cot and on the way to hospital, he succumbed to his injury.

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During cross-examination, this witness has stated that the deceased has not taken the name of accused persons before him and only stated that

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they were outsiders. He further stated that the deceased became unconscious soon thereafter and later on he died.

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PW5-Zubeda Khatoon is the wife of the informant. She has also corroborated the factum of assault upon her brother and father-in-law by the accused persons. She has deposed that she was present at the place of occurrence at that time. She has deposed that the accused Safeed @ Sukhru, Zafir, Karmulli, Shahabuddin, Maniruddin and others assaulted her brother with bomb, lathi and Bhala due to which he fell down. She has further stated that thereafter the accused persons assaulted her father-inlaw, namely, Sk. Badruddin and her husband (informant) with lathi and Bhala due to which her father-in-law and husband got injuries and later on her father-in-law succumbed to injury on the way to hospital.

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During cross-examination, this witness has narrated about the details

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and location of place of occurrence. In para-2 of her cross-examination, this witness has stated that her brother fell down on the eastern boundary of the field. She identified the accused persons who are present in the dock.

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PW6-Lateef is a hearsay witness and he deposed that he had seen the deceased lying on a cot in injured position who died later on.

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During cross-examination, he denied the suggestion that he is an agnate ( Gotiya ) of the informant.

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PW7-Haneef was tendered for cross-examination.

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PW8-Md. Ghulam Rasul was the person who put his signature on the fardbeyan of the informant which has been marked as Ext-2. He has deposed that the informant is his brother-in-law. He has corroborated the statement of the informant and narrated the entire prosecution story. He has stated that the accused persons-Safeed, Karmulli, Allauddin,

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Shahabuddin, Shamsuddin, Zafir and others while chasing PW2 came to the place of occurrence and started assaulting him with bomb, lathi and Bhala. He has deposed that Safeed hurled bomb hitting his brother on his back upon which he fell down on the earth. Thereafter, the accused persons assaulted him with lathi and Bhala. He has further deposed that the accused persons thereafter assaulted Badruddin and the informant. He has deposed that Karmulli gave Bhala blow. He has identified the accused persons in the dock. He has further stated that all the three injured persons, namely, Mazharul Haque, Fakruddin and Badruddin were brought to Basantrai OP where they reached at about 3-4 PM. After 5 to 10 minutes, they started to the hospital as there was no S.I of Police to record the fardbeyan. They brought the injured to Pathargama hospital and on the way Badruddin succumbed to his injury. He further deposed that he along with the injured and the deceased came to Godda at 9 PM where the police official came to record the statement of the informant. This witness has deposed that due to absence of the police official at Basantrai OP and at Pathargama PS the fardbeyan was recorded by the SI of Police, Pathargama at Godda Hospital on the very next day.

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PW9-Md. Tahir is said to be an eye witness. He has deposed that while he was coming from the village-Miraandichak to the place of occurrence situated at village-Nakta, he saw the occurrence. He has stated that Karulli, Safeed, Zabir, Allauddin, Shamsuddin, Shahabuddin, Soleman, Noor Mohammad, Tauhid and Hafizuddin came at the place of occurrence. The accused-Karmulli gave bhala blow to Badruddin, Mazharul Haque was hit with bomb on his back and other accused persons started assaulting the injured persons by means of lathi. He has also identified the accused persons.

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PW10-Dr. Vijay Kumar Bhagat was a colleague of Dr. Anirudh Mandal who conducted postmortem examination over the dead body and examined the witness. Though this witness has not conducted the postmortem examination over the dead body but he was with Dr. Anirudh Mandal who had examined the injured and conducted the postmortem examination over the dead body. This witness has identified the signature of Dr. Anirudh Mandal put over the injury report and postmortem examination report.

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During his cross-examination, this witness has stated that postmortem report has not been prepared before him and he is not knowing the injured persons personally. He has further stated that in the injury report of the informant, there is no mention of injury caused by any explosive substance. He has further stated that in the postmortem examination report of the deceased, there is no report about any injury caused by hard and blunt substance or any explosive substance.

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PW11-Jagdish Chandra Yadav is the investigating officer of the case. He has stated that he has not investigated the case from beginning as before him, his two predecessor police officers were investigating the case. This witness has identified the signature of the police officer who recorded the statement of the informant and stated about the case as recorded in the case diary.

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Dr. Anirudh Mandal has examined the injured witnesses on 17.10.96 at the hospital at Godda and conducted postmortem examination over the dead body. After examination of the informant, he has found the following injuries on his person;

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(1) One penetrating wound ½ " x 1” x 1” on the surface of R Palm;

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(2) One penetrating wound ½ "x 1” x 1” over left palm,

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(3) One incised wound 1” x 2” x 1” over the R leg,

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(4) One lacerated wound 1” x ½ " x ½” over L leg,

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(5) One bruise ½” x ½” x over middle of R thigh,

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All the injuries are simple in nature.

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In the opinion of the doctor, injury nos.1 and 2 by sharp cutting pointed weapon. Injury Nos. 3 by sharp cutting weapon, and injury Nos. 4 and 5 by hard and blunt substance.

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After examination of PW2, he has found the following injuries on his person;

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(1) One bruise 1” x ½ " over R shoulder,

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(2) One bruise 1” x ½ " over L side of the chest,

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(3) Two penetrating wounds size ½ "x 1” x 1”,

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Size 1” x 1” x ½ ” over leaf of L palm,

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(4) One laceration 3” x 2 " with the tattooing mark around the laceration over the middle of back.

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(5) One bruise size 1” x ½” over back of R palm,

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(6) One lacerated wound 1” x ½” x1” over R leg,

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(7) One bruise size ½” x ½” over L ankle.

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All the injuries are simple in nature.

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In the opinion of doctor, Injury Nos.1, 2, 5, 6 and 7 caused by hard and blunt substance. Injury No.3 by sharp cutting pointed weapon. Injury No.4 -opinion is reserved.

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Dr. Anirudh Mandal, who conducted the post-mortem examination on the dead body of Badruddin has found the following ante-mortem injuries:

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(1) One penetrating wound ½ "x½ "x2” over the R elbow,

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(2) One penetrating wound ½ "x1” x2” over the lower portion R tibia along the trachea of low end of R tibia.

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(3) One penetrating wound ½ "x1” x2” over middle of L forearm

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(4) One penetrating wound 1” ½ "x1” over the R chest passing through the abdomen muscle inside.

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All the injuries were grievous. In the opinion of the doctor all injuries were caused by sharp cutting pointed weapons. In the opinion of the doctor the death was due to shock and hemorrhage as a result of injury succumbed alone which were sufficient to cause death in ordinary course.

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Thus, from the aforesaid it is evident that the learned trial Court after taking aid of the Section 149 based upon the testimony of the prosecution witnesses had passed the order of conviction of the present appellants under section 302 of the IPC.

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At this juncture it would be apt to discuss the essential requisite for the application of Section 149 IPC. Section 149 IPC reads as under: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.— If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

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From bare perusal of the aforesaid, it is evident that in order to attract the provision of Section 149, following ingredients are to be essentially established:

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(i) There must be an unlawful assembly.

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(ii) Commission of an offence by any member of an unlawful assembly.

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(iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed.

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If these three elements are satisfied, then only a conviction under Section 149 IPC, may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly.

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In “ Mukteshwar Rai v. State of Bihar”, 1992 Supp (1) SCC 727 , the accused persons were alleged to have formed an unlawful assembly, gathered in a village and set some houses on fire and ransacked. Two persons died as they got burnt and two could not be traced. The Hon’ble Apex Court agreed with the finding of the High Court as to the formation of the unlawful assembly but as to the finding that the common object of the unlawful assembly was to commit murder took somewhat a different view and observed as under :

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“ 4. … the specific overt acts attributed to A-1 and five others who are said to have actively participated in setting the fire and thrown some of the victims into the fire stand disbelieved. It may also be noted that none of the PWs is injured and we find from the judgment of the High Court that none of the witnesses say that any one of these appellants were armed. The learned Judge has extracted the incriminating part in each of the witnesses against these appellants. It stated that these accused were identified by those respective witnesses mentioned therein in discussing the case against each of the accused. There is nowhere any mention that any one of these appellants was armed. In such a situation, the question is whether these appellants also had a common object of committing the murder. We have given earnest consideration to this aspect. Taking a general picture of the case and after a close scrutiny of the evidence we find that two persons were charred to death. This must have been the result of setting fire to those houses. With regards

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the other two missing persons it cannot be concluded that they were murdered in the absence of any iota of evidence. Under these circumstances, we find it extremely difficult to hold that a common object of the unlawful assembly was to commit murder.”

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We would also like to quote the following passage from the judgment

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rendered by the Hon’ble Apex Court in the case of “ Thakore Dolji Vanvirji v. State of Gujarat” , 1993 Supp (2) SCC 534 which reads as under:

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“ 3. … Now the question is whether all the accused would constructively be liable for an offence of murder by virtue of Section 149 IPC. So far as A-1 is concerned, it is the consistent version of all the eyewitnesses that he dealt a fatal blow on the head with a sword and the medical evidence shows that there was a fracture of skull and the blow must have been very forceful because even the brain was injured. Therefore, he was directly responsible for the death of the deceased and the High Court has rightly convicted him under Section 302 IPC. Now coming to the rest of the accused, all the eyewitnesses have made an omnibus allegation against them. Even A-2, according to the eyewitnesses, gave only one blow and that the remaining accused gave stick-blows. All these injuries were not serious and were simple. The injury attributed to A-2 was on the cheek and the doctor did not say that it caused any damage. So it must also be held to be a simple injury. Then we find only a bruise and an abrasion on the right arm and some bruises on the back. These injuries did not result in any internal injuries. There was not even a fracture of rib. Therefore, they must also be simple injuries. It is only Injury 1 which was serious and proved fatal. Therefore, the question is whether under these circumstances common object of the unlawful assembly was to cause the death of the deceased and whether every member of the unlawful assembly shared the same? No doubt Section 149 IPC is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring the common object, various circumstances also have to be taken into consideration. Having regard to the omnibus allegation, we think it is not safe to convict every one of them for the offence of murder by applying Section 149 IPC. On a careful examination of the entire prosecution case and the surrounding circumstances, we think the common object of the unlawful assembly was only to cause grievous hurt. But A-1 acted in his own individual manner and caused one injury with the sword which proved fatal.”

¶149

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Thus, it is the settled proposition of law that in fixing the membership of the unlawful assembly and in inferring the common object, various circumstances also have to be taken into consideration and just on the basis of the omnibus allegation, it is not safe to convict every one of them for the alleged offence by applying Section 149 IPC.

¶152

Further, it is settled position of law that the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided on the facts and circumstances of each case. The nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place are the factors to decide as to whether the accused had common object. It is an inference to be deduced from the facts and circumstances of each case.

¶153

Applying, the aforesaid settled principle in the present case there is no concrete evidence to prove that the present appellants had any common object to commit the murder of deceased.

¶154

It needs to refer herein that as per the injury report of the PW1 it is evident that all the injuries were simple in nature as such question herein arises that if the common object of the alleged unlawful assembly was murder, then why only simple injuries had been caused to him by 12-14 accused persons.

¶155

Further, after going through injury report of PW2 victim and injured eyewitness, it is evident that the doctor had opined that all the injuries were simple in nature and opinion was reserved for the injury no. iv which was alleged to be caused by hurling of Bomb by the present appellant namely Sk. Safeed @ Sukharu.

¶156

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The expression “in prosecution of the common object” occurring in this section postulates that the act must be one which has been done with a view to accomplish the common object attributed to the members of the unlawful assembly. This expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with common object by virtue of nature of object. In the instant case, even the evidence is not laid on this aspect.

¶159

Thus, from the aforesaid it can safely be inferred that there was no common object among the accused person including the present appellant to cause murder of the aforesaid person. Therefore, after going through the evidence in detail, we are of the opinion that the prosecution evidence is not sufficient to conclude that any conspiracy was hatched by the present appellants with common object to cause the death of deceased.

¶160

Before adverting to the fact of the case it would be apt to refer herein that it is cardinal principle of the criminal jurisprudence that that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of “ Rang Bahadur Singh & Ors. Vrs. State of U.P.” , (2000) 3 SCC 454 , wherein, at paragraph-22, it has been held as under:-

¶161

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

¶162

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¶164

Likewise, the Hon'ble Apex Court in the case of “ Krishnegowda & Ors. Vrs. State of Karnataka”, (2017) 13 SCC 98 , has held at paragraph-26 as under:-

¶165

"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

¶166

In the backdrop of the aforesaid settled position, we are now re-adverting to factual aspects of the instant case. Admittedly herein the investigating officer of the instant case who had investigated major part of the case has not been examined. Further the doctor who had conducted autopsy of the dead body of the deceased and prepared the injury report of PW1 and PW2 has also not been examined, however, the post-mortem report as well as injury report of the victims are available on the record. It needs to refer herein that although there is allegation against the appellant, namely, Sk. Safeed @ Sukharu that he had hurled bomb on PW2 but the charges under Section ¾ of the explosive substance has not been framed.

¶167

From the post-mortem report of the deceased it is evident that death has been caused due to penetrating wound w hich has been inflicted by sharp cutting pointed weapons. As per the prosecution witnesses, particularly, PW1 and PW2 who are the injured eyewitnesses and their presence at the place cannot be doubted have categorically stated that Sk. Karmulli (since dead) and other accused persons were armed with Bhala (pointed iron weapon with long handle of wood/iron) and they had assaulted the deceased by means of Bhala and lathi. The statement of these witnesses

¶168

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has been found substantiated by the post mortem report wherein the doctor has found the penetrating wound on the body of the deceased but so far, the assault made by lathi is concerned, the doctor has not found any lacerated wound on the body of deceased. Therefore, from the aforesaid it is evident that the present appellants have not caused murder of the deceased because it has been alleged against the appellant, namely, Sk. Zafruddin @ MD. Zafruddin that he was armed with lathi and another appellant, namely, Sk. Safeed @ Sukharu hurled bomb upon PW2. It requires to refer herein that as per postmortem report death of the deceased has not been caused by the explosion of the bomb.

¶171

Based on the discussion made herein above, it is evident that as per the allegation made in the F.I.R the deceased was assaulted by sharp cutting weapon like Bhala and as per the medical evidence death was caused due to the incised wound and since the present appellants were not armed with any sharp cutting weapon, therefore, conviction of the appellants under section 302 IPC with the aid of section 149 IPC is not sustainable.

¶172

So far, the conviction of the appellants under Section 307/149 of IPC is concerned, it is evident from the injuries report of the PW1 and PW2 that all the injuries were simple in nature. It has further been contended that it had been alleged that the appellant, namely, S k. Safeed @ Sukharu hurled bomb upon PW2 but as per the medical evidence it would be evident that the opinion was reserved on the point of injury sustained by the bomb.

¶173

46.At this juncture it would be apt to refer herein Section 307 IPC which reads as under:

¶174

“ 307. Attempt to murder .—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten

¶175

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years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts . —When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death .

¶178

47.The first part of Section 307 refers to “an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder”. The second part of Section 307, which carries a heavier punishment, refers to “hurt” caused in pursuance of such an “act”.

¶179

48.In ” State of Maharashtra v. Balram Bama Patil”, (1983) 2 SCC 28 , the Hon’ble Apex Court has observed that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted, for ready reference the relevant paragraph is being quoted

¶180

as under:

¶181

“9. … To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.” (emphasis supplied)

¶182

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¶184

In “ State of M.P. v. Saleem”, (2005) 5 SCC 554, the Hon’ble Apex Court has held which reads as under:

¶185

“ 13 . It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt .”

¶186

In ” Jage Ram v. State of Haryana” (2015) 11 SCC 366 , the Hon’ble Supreme Court has held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted, for ready reference the relevant paragraph is being quoted as under:

¶187

“12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.”

¶188

It is evident from the aforesaid settled proposition of law that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code and the intention of the accused can be

¶189

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ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.

¶192

Thus, it is apparent that whoever does any act, with the intention or knowledge, which may cause death and in furtherance to the said intention and knowledge, he was doing an act towards it. However, it is required to be seen by the evidence brought on record by the prosecution whether the ingredients to prove, the case of prosecution beyond reasonable doubt, the charge under Sections 307 IPC have been established.

¶193

53.In the backdrop of the aforesaid settled proposition of law, now we are adverting to the facts of the case. As per the F.I.R there is no allegation against the appellant, namely, Sk. Zafruddin @ Md. Zafruddin that he was involved directly in the alleged crime . However, in the testimony of the prosecution witness it has come that he has assaulted the injured witnesses with lathi but from the scrutiny of the testimony of the witnesses, it is evident that there is general and omnibus allegation against the present appellant. However, it is evident from the testimony of the prosecution witnesses and as discussed herein above that simple injury was caused on the persons i.e. PW1 and PW2. As per the injury report of PW1 one lacerated wound 1” x ½ " x ½” over L leg was found and further, other injuries incised or penetrating in nature. The injuries which was lacerated may be attributed to the present appellants but other injuries cannot be attributed to the present appellants. Further as per the injury report of PW2 it is evident that all the injuries were simple in nature and opinion was reserved in respect to injury no.4 which was one laceration of size of 3” x 2 " with the tattooing mark around the laceration over the middle of back.

¶194

Since there is no concrete opinion about that particular injury, therefore, it

¶195

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will not be to inferred that the same was caused by hurling of the bomb by the appellant, namely, Sk. Safeed @ Sukharu.

¶198

Thus, on the basis of the discussion made hereinabove, it is evident that evidence is not sufficiently available on record in order to convict the present appellants under Section 307/149 IPC and since concrete evidence is not available therefore it is considered view of this Court that present appellants deserve to be given “benefit of doubt”, so far the charges aforesaid is concerned.

¶199

It requires to refer herein that the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of “ State of Haryana Vrs. Bhagirath & Ors.”, reported in (1999) 5 SCC 96 , wherein, it has been held at paragraph-7 as under: -

¶200

"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire

¶201

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evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

¶204

Likewise, the Hon'ble Apex Court in the case of “ Krishnegowda v. State of Karnataka” (Supra) at paragraph- 32 and 33 has held as under:-

¶205

"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

¶206

33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- -”

¶207

Further, it needs to refer herein that the Hon'ble Apex Court, in the case of “ Allarakha K. Mansuri v. State of Gujarat”, (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for ready reference, paragraph-6 thereof requires to be referred herein which reads hereunder as :-

¶208

“6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. —"

¶209

It needs to refer herein before laying down the aforesaid view, the Hon’ble Apex Court in the case of “ Sharad Birdhichand Sarda v. State of Maharashtra”, (1984) 4 SCC 116 has already laid down the same view at paragraph-163 which is required to be referred which read hereunder as

¶210

“163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where

¶211

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on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"

¶214

59.This Court, after having discussed the factual aspect and legal position and

¶215

considering the finding recorded by the learned trial Court, is of the view that accusation under Section 307/149 of the IPC against the present appellants is not made out, therefore, the present appellants cannot be convicted under Section 307 of the IPC.

¶216

Further as discussed hereinabove in the preceding paragraph, it is clear that no role is attributed to present appellants in the murder of deceased, namely, Badruddin (father of the informant). Further, there is no evidence put forth by the prosecution in regard to common object in the entire alleged occurrence, therefore, the present appellants cannot be convicted under Section 302/149 IPC also.

¶217

At this juncture it would be apt to refer herein that since the presence of the injured prosecution witness particularly PW1 at the place of occurrence is not doubtful and PW1 in his fardbeyan has categorically stated that present appellant namely Sk. Zafruddin @ MD. Zafruddin was armed with lathi and passaulted the injured witnesses by lathi. As per the injury reports lacerated wound had been found by the doctor on body of injured persons. Therefore, it is considered view of this Court that the appellant is guilty for the offence under Section 321 IPC punishable under Section 323 IPC.

¶218

Further, as discussed herein above as has been alleged against the appellant, namely, Sk. Safeed @ Sukharu that he hurled bomb. However, as per the injury report definite opinion has not been given by the doctor regarding injury no.4, i.e., one laceration 3” x 2 " with the tattooing mark around the laceration over the middle of back which may perhaps caused by the bomb. Since the aforesaid injury is simple in nature and there is no

¶219

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definite opinion about the genesis of the said injury, therefore, this Court is of the view that the appellant-Sk. Safeed @ Sukharu is guilty for the offence under Section 321 IPC punishable under Section 323 IPC.

¶222

So far the conviction of the present appellants under Section 148 of the IPC is concerned, it would be relevant to mention herein that Section 146 of the IPC provides that whenever force or violence is used by unlawful assembly or by any member thereof in prosecution of the common object of such assembly, every member of the unlawful assembly is guilty of the offence of rioting. Therefore, the condition precedent for attracting Section 148 of the IPC is that there has to be an unlawful assembly. Section 141 IPC defines an “unlawful assembly” as an assembly of five or more persons with a common object. Herein since no concrete evidence has been put-forth by the prosecution regarding the common object, therefore conviction against the present appellants under Section 148 IPC is also not sustainable.

¶223

64.This Court, therefore, is of the view based upon the discussions made hereinabove, that the impugned judgment needs interference, accordingly, the judgement of conviction dated 28.06.1996 and the order of sentence dated 29.06.1996 passed by the learned 1^st Additional Sessions Judge, Godda in Sessions Case No. 77 of 1986/10 of 1995 is hereby quashed and set aside.

¶224

65.The appellants, above named are acquitted of the charges framed against them for the offence under sections 302/149 and 307/149 of the Indian Penal Code.

¶225

Consequent to the aforesaid, this Court, hereby, hold appellants guilty for the offence under Section 323 I.P.C. and sentence them for the period already undergone by them.

¶226

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67.The appellants are on bail by the order of this Court passed in the present proceeding and, as such, they are discharged from the liabilities of bail bonds.

¶229