Mojaul Sk Vs State of Jharkhand

2025:JHHC:12016

Criminal Appeal (S.J.) No. 860 of 2006

[ Against the Judgment of conviction 08.06.2026 and Order of sentence dated 09.06.2006 passed by learned Additional Sessions Judge-I, Rajmahal in Sessions Case No. 21 of 1998 ]

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Futwa @ Mukhtar Alam, Son of Late Makshud Sheikh, resident of Koya Bazar, P.O. & P.S. – Rajmahal, District – Sahibganj.

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… … Appellant

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Versus

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The State of Jharkhand … … Respondent

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Criminal Appeal (S.J.) No. 905 of 2006

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Mashrul Sheikh, Son of Late Shutki Sheikh.

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Abad Hussain, Son of Late Fasadu Sheikh.

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All resident of Koya Bazar, P.O. & P.S. – Rajmahal, District – Sahibganj.

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Versus

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The State of Jharkhand … … Respondent

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WITH

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Criminal Appeal (S.J.) No. 973 of 2006

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Mojaul Sk., Son of Mojaffar Sk., resident of Koila Bazar, P.S. – Rajmahal, District – Sahibganj.

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The State of Jharkhand … … Respondent

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Criminal Appeal (S.J.) No. 1041 of 2006

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Punni Sk. @ Multan Sk., Son of Late Rajmani Sk.

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Taiyab Alam, Son of Md. Sahabuddin Sk.

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Both are resident of Koila Bazar, P.S. – Rajmahal, District – Sahibganj.

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… … Appellants Versus The State of Jharkhand … … Respondent

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For the Appellants : Mrs. J. Mazumdar, Advocate For the Respondent : Mr. Jitendra Pandey, A.P.P. [In all cases].

P R E S E N T

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGMENT

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C.A.V. on 07.01.2025 Pronounced on 04.04.2025

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1. Initially, Cr.A.(S.J.) No. 860 of 2006 was filed on behalf of four appellants namely, Sultan Sheikh, Fakir Mohammed, Ashu Sheikh and Futwa @ Mukhtar Alam, but during pendency of the appeal, Sultan Sheikh, Fakir Mohammed and Ashu Sheikh have died and the appeal with respect to appellants namely, Sultan Sheikh, Fakir Mohammed and Ashu Sheikh was abated in terms of order dated 13.04.2022.

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2. Similarly, Cr.A.(S.J.) No. 905 of 2006 was filed on behalf of four appellants namely, Mashrul Sheikh, Taiyab Alam, Abad Hussain and Hasa Sheikh @ Hasna Sheikh, but the name of appellant no. 2 Taiyab Alam was deleted in terms of order dated 07.09.2006, as appellant no. 2, Taiyab Alam has preferred another appeal bearing Cr.A.(S.J.) No. 1041 of 2006. Thereafter, one of the appellants namely, Hasa Sheikh @ Hasna Sheikh has died and the appeal with respect to appellant namely, Hasa Sheikh @ Hasna Sheikh was abated in terms of order dated 07.01.2025.

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3. Appeals of surviving appellants namely, (1) Futwa @ Mukhtar Alam (appellant in Cr.A.(S.J.) No. 860 of 2006), (2) Mashrul Sheikh and (3) Abad Hussain

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(appellants in Cr.A.(S.J.) No. 905 of 2006), (4) Mojaul Sheikh (appellant in Cr.A.(D.B.) No. 973 of 2006), (5) Punni Sk. @ Multan Sk. and (6) Taiyab Alam (appellants in Cr.A.(D.B.) No. 1041 of 2006).

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4. Heard Mrs. J. Mazumdar, learned counsel appearing for the surviving appellants and Mr. Jitendra Pandey, learned A.P.P. appearing for the State in all appeals.

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5. All the four criminal appeals have been directed against the common judgment of conviction dated 08.06.2006 and order of sentence dated 09.06.2006 passed by learned Additional Sessions Judge-I, Rajmahal in Sessions Case No. 21 of 1998, whereby and whereunder, the appellants have been held guilty for the offences under Sections 147, 148, 341, 323/149, 324/149, 326/149, 307/149, 337 and 504 of the I.P.C. and sentenced to undergo R.I. for six months for the offence under Section 147 of the I.P.C., further sentenced to undergo R.I. for one year for the offence under Section 148 of the I.P.C., further sentenced to undergo S.I. for one month for the offence under Section 341 of the I.P.C., further sentenced to undergo R.I. for six years for the offence under Sections 326/149 of the I.P.C., further sentenced to undergo R.I. for six years for the offence under Section 307/149 of the I.P.C., further sentenced

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to undergo S.I. for three months for the offence under Section 337 of the I.P.C. and further sentenced to undergo S.I. for six months for the offence under Section 504 of the I.P.C. All the sentences were directed to run concurrently. No sentence is awarded in respect of the charges under Sections 323/149 and 324/149 I.P.C. as punishments have been awarded in respect of the charges under Sections326/149 and 307/149, which are major offences.

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FACTUAL MATRIX

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6. The prosecution story as depicted in the F.I.R. lodged on the basis of fardbeyan of one Anwarul Haque @ Khudia recorded by S.I. Naveen Prasad, Officer-inCharge, Rajmahal P.S. in Referral Hospital, Rahmahal, Ward No. 2 on 21.02.1997 at about 21:45 hours is that on 21.02.1997 (Friday) at about 5:30 P.M., the informant’s uncle Zahir Sheikh was returning from Rajmahal Court, then in the way to his home, his Covillager, Futwa Sheikh started taunting and passing some comments on his uncle Zahir, upon objection raised by the informant, Futwa Sheikh started abusing the informant and warned to teach a lesson. All of a sudden Futwa Sheikh went inside the house and immediately came out armed with a pistol, Khudia

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Sheikh armed with double barrel gun, Taiyab Sheikh armed with a pistol, Mojaul armed with a pistol in his right hand and hasua in his left hand, Jamil Sheikh armed with a pistol, Punni Sheikh armed with a pistol, Sultan Sheikh armed with hasua, Hasa Sheikh armed with a sword, Fakira Sheikh armed with a sword, Masrul Sheikh armed with a pistol and Ashu Sheikh armed with pistol forming an unlawful assembly came out from their respective house. It is further alleged that just arrival of the accused persons at the place of occurrence with their respective arms, Khudia Sheikh fired from his doble barrel gun with intention to kill the informant, which caused injury on his left ribs, then the informant with a view to save his life started fleeing away towards his home, meanwhile, Taiyab Sheikh also fired upon the informant, but he escaped himself and no injury was caused, but in the meantime, Mojaul Sheikh gave hasua blow, which caused injures on both wrists, but informant continued to flee away under injured condition towards his home. It is further alleged that other accused persons were chasing the informant by pelting stones and firing and in that course, one of the Co-villagers namely, Naim Sheikh, who came to rescue the informant also got injured. It is further alleged that when several villagers assembled

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to save informant, then they fled away. The informant has also claimed that the above occurrence was seen by witnesses Kharib Sheikh, Yusuf Khan, Nasir Sheikh, Kurban Sheikh etc., who managed a bullock cart and brought the informant under injured condition to Referral Hospital, Rajmahal. Due to injury on both hands, he put his LTI over the fardbeyan.

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7. On the basis of fardbeyan of informant, FIR being Rajmahal P.S. Case No. 29 of 1997 was registered against the abovenamed 11 accused persons for the offence under Sections 147, 148, 149, 341, 337, 323, 324, 326, 307 and 504 of the I.P.C. and Section 27 of the Arms Act.

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8. After completion of investigation, the I.O. of the case has submitted charge sheet. Cognizance of the offence was taken and subsequently, the case was committed to the court of Sessions, where Sessions Case No. 21 of 1998 was registered. Charges have been framed for the offences under Sections 147, 148, 341, 323/149, 324/149, 326/149, 307/149, 337 and 504 of the I.P.C., to which the accused persons pleaded not guilty and claimed to be tried.

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9. In order to substantiate the charges leveled against accused persons, altogether eleven witnesses were

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examined by the prosecution. Apart from oral evidence of witnesses, following documentary evidence has been adduced by prosecution:-

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Exhibit-1 : Signature of Kurban Sheikh on Fardbeyan. Exhibit-1/1 : Fardbeyan. Exhibit-1/2 : Endorsement on the Fardbeyan. Exhibit-2 : Injury Report of Informant. Exhibit-2/1 : Injury Report of Naim Sheikh. Exhibit-3 : Formal F.I.R. Exhibit-4 : Judgment dtd. 18.09.2004 passed in P.C.R. No. 257/1992, S.C. No. 78/1999 in the court of Ist Additional Sessions Judge, Rajmahal.

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10. On the other hand, the defence has also examined

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four witnesses and adduced following documents:-

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Exhibit-A : Signature of Kurban Sheikh (P.W.-6) on affidavit. Exhibit-B : C.C. of judgment of the learned Sessions Judge, Sahibganj in S.C. No. 283/94 dated 27.06.2002. Exhibit-C : C.C. of judgment passed by the learned SDJM, Rajmahal dated 28.02.2000 in G.R. No. 266/93. Exhibit-D : C.C. of charge sheet of Rajmahal P.S. Case No. 175/2003 dated 11.12.2003. Exhibit-E : C.C. of Final Form of Rajmahal P.S. Case No. 149/2003 dated 9.10.2003.

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Exhibit-F : C.C. of supplementary final form of Rajmahal P.S. Case No. 149/2003. Exhibit-G : C.C. of F.I.R. of Rajmahal P.S. Case No. 28 of 1997 dated 21.02.1997.

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11. After conclusion of trial, considering the evidence adduced by the prosecution and defence, the trial court has convicted and sentenced the appellants, as stated above, which has been assailed in these appeals.

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12. Learned counsel for the appellants has vehemently argued that the learned trial court has travelled beyond the evidence available on record and failed to properly appreciate the same. The genesis of occurrence lies in the taunting and some scuffle with Zahir Sheikh, who happens to be the uncle of the informant, but the said Zahir Sheikh neither has been made witness in this case during investigation nor examined as a court witness. It is admitted fact that the said Zahir Sheikh was convicted for the offence under Section 302 of IPC for causing murder of brother of appellant Abad Sheikh.

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13. It is further submitted that there is no iota of evidence to prove the common object of the appellants without proving the same, there cannot be any unlawful assembly. It is also brought on record by prosecution

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witnesses that all the accused persons used to reside in separate houses and at distant places from the place of occurrence.

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14. It is also surprising that although the FIR was lodged on the same day from both side and the Investigating Officer P.W.-11 visited the place of occurrence on the next day morning, but no licensee gun of the appellant Abad Sheikh was seized in this case. The Doctors of Higher Centre, who treated the injured informant, have also not been examined to prove conclusively that the injuries sustained by informant were caused by firearm. Although in the injury report, it is stated that there were pellets injuries on different parts on the back of the injured, but no pellets were seized and produced during trial to substantiate the same. The defence has also prejudiced from effective to cross-examination of the Doctor, who conducted the medical examination, inasmuch as the above injuries may be caused by brick batting as is alleged by the witnesses. The story of using firearm has been absolutely manipulated by the prosecution. Admittedly the injuries sustained by the informant were simple in nature caused by sharp cutting weapon. The cumulative effect of prosecution evidence does not lead to commission of offence under Section

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326 and 307 of the I.P.C. The circumstances of the case do not indicate the required intention or knowledge for constituting the offence under Section 307 of the I.P.C. No supplementary injury report was produced to prove the same to be grievous in nature. No x-ray plates of wrist injuries were produced. It is quite impossible that if several persons armed with pistols, sword and hasua and in immediate presence of the informant, then if intended to kill him, they have sufficient opportunity and means to done away with the informant and he could not escape by fleeing as alleged.

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15. It is further submitted that the learned trial court has miserably failed to properly consider the defence evidence and declined to rely upon the same merely on account of existence of enmity between the parties and no valid reason has been attributed for disbelieving the documentary evidence of defence, which clearly goes to show that Zahir Sheikh was convicted for the offence under Section 302 of the I.P.C. for causing murder of brother of Abad Sheikh, informant of Rajmahal P.S. Case No. 201 of 1992.

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16. It is also obvious that at first fardbeyan of accused Taiyab Alam was recorded by the police in the same

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Hospital and FIR of Rajmahal P.S. Case No. 28/1997 was registered earlier than the FIR lodged by the present informant.

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17. It is further submitted that the occurrence is of the year 1997 and out of 11 accused persons, 05 appellants namely, Sultan Sheikh, Fakir Mohammad, Ashu Sheikh, Hasa @ Hasna Sheikh and Jamil Sk. @ Jamil Akhtar have died during pendency of the appeal and the appeals on their behalf have already been abated. In absence of any cogent evidence to establish existence of any unlawful assembly with particular “common object”, the conviction of the appellants under Sections 147 & 148 and for other charges with the aid of Section 149 of the I.P.C. is absolutely illegal and unwarranted. The main attribution is against the appellants Futwa and Abad Hussain @ Khudia Sheikh, who were held guilty for the offence under Sections 147, 148, 341, 323/149, 324/149, 326/149, 307/149, 337 and 504 of the I.P.C., have been released after sustaining full period of sentence awarded to them. So far appellant Mojaul Sheikh is concerned, the allegation against him is of giving hasua blow upon the informant, but the injuries are found to be simple in nature, therefore, at

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best offence under Section 324 of the I.P.C. is proved against the appellant Mojaul Sheikh. Other appellants deserve acquittal from the charges in absence of cogent and reliable evidence.

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18. In alternative, it is submitted that so far Mojaul Sheikh is concerned, the occurrence is of the year 1997 and the appellant Mojaul Sheikh has faced the rigor of trial for more than two decades and has remained in custody for about 01 month and 19 days.

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Under the facts and circumstances of the case, appellant Mojaul Sheikh has sufficiently been punished for his guilt. Hence, his sentence may be reduced to the imprisonment already undergone.

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19. Per contra, learned APP appearing for the State has opposed the aforesaid contentions raised on behalf of the appellants and has submitted that the trial court has very wisely and aptly analyzed, scanned and appreciated oral as well as documentary evidence available on record and arrived at right conclusion holding the appellants to be guilty for the offences charged against them and adequately passed the order of sentence. There is no illegality or infirmity in the impugned judgment and order, calling for any interference, by way of these appeals, which are devoid of merits and fit to be dismissed.

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20. I have gone through the record of the case along with impugned judgment in the light of contentions raised on behalf of both side.

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21. It appears that altogether eleven witnesses have been examined in this case by the prosecution to substantiate the charges levelled against the accused persons.

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P.W.-1, Saimul Sheikh, P.W.-2 Sudha Sheikh and P.W.-9, Kuddus Sheikh have been declared hostile by the prosecution.

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P.W.-3, Tahir Sheikh and P.W.-4, Salimuddin

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have been tendered for cross-examination.

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P.W.-5, Yusuf Khan is an eye witness of the

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occurrence. According to his evidence, on the date of occurrence at about 5:30 to 6:00 P.M., he was inside his house and after hearing hulla came out and saw that scuffle was going on between Khudia Sheikh and Futwa Sheikh, son of Maksud. Meanwhile, Abad Hussain, Taiyab Alam, Fakir Mohammad, Daso Sheikh, Masrul Sheikh, Ashu Sheikh, Majoul Sheikh, Sultan Sheikh, Punni Sheikh, Jamil Akhtar also approached there. Meanwhile, Abad Hussain opened fire by gun which did not cause any injury, but he again says that the said fire caused injury on left side

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to Khudia. He has further deposed that Taiyab also opened fire upon Khudia, which did not cause any injury. He has further deposed that Mujahul was giving hasua blow on the neck to Khudia, which warded off by his hands and sustained injuries on both wrists. He has further deposed that seeing the occurrence, he went inside the mosque and performed namaj there and again he came out and saw other accused persons were pelting stones, then he stayed in the mosque and when the crowd scattered then he went to his home.

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In his cross-examination, this witness clearly states that this case was lodged on the basis of fardbeyan of Khudia, which was recorded in his presence near the Village Mosque. The scuffle was going on in front of his house on road. He could not tell the reason for scuffle between the parties. He has also admitted that the occurrence continued about 10-15 minutes and he saw the occurrence from courtyard of the mosque. He also admits that in the said occurrence only one person was injured.

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P.W.-6, Kurban Sheikh . According to his evidence, he was going to offer namaj in the village mosque in the evening and when he reached near the

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mosque, then he saw that Abad Hussain, Futwa Sheikh, Mojahul Sheikh, Sultan Sheikh, Multan Sheikh, Hoso Sheikh, Taiyab Sheikh, Fakira Sheikh, Ashu Sheikh and Ashrul Sheikh were running towards the mosque. He has further stated that Abad was bearing his double barrel licencee gun, Futwa and Multan were armed with pistol, Sultan armed with hasua, Mojaul armed with hasua, Hasna and Fakira were armed with sword, Taiyab, Ashu and Mashrul were armed with pistol. He has further deposed that above accused persons were forming an unlawful assembly. Abad Hussain ordered to kill Anwarul and also fired upon him by his gun, which caused injuries on ribs then Taiyab also fired, which caused no injury to anyone. Thereafter, Mojaul gave hasua blow to Anwarul, which was avoided by him on his hands and got injuries on both hands. Thereafter, Anwarul fled away towards his house and the accused persons pelting stones upon the house of Nazir and Yusuf, due to which mud tiles of the roof was broken. This witness along with other villagers brought the injured Anwarul by bullock cart to Referral Hospital, where his fardbeyan was recorded in presence of witness. He has also proved his signature on

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fardbeyan, which is marked as Exhibit-1. He could not tell the reasons for the occurrence.

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In his cross-examination, he states that he is the cousin uncle of the informant. There is nothing material in his cross-examination to rebut his aforesaid testimony.

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He has denied the suggestion of the defence that in the same occurrence Taiyab Alam was also injured and he was treated at Rajmahal Hospital and he has also lodged Rajmahal P.S. Case No. 28 of 1997 against the informant party and family members of this witness.

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He has also denied the suggestion of the defence that with a view to save his nephew, he is giving false evidence, but this witness admits in the case of State Vs. Abad Hussain, he has given evidence, but he has not given evidence in the case of State Vs. Sultan pending in this Court and also denied that he is a professional witness.

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P.W.-7 Anwarul Haque @ Khudia . He is the informant-cum-injured in this case. According to his evidence, on 21.02.1997 at about 5:00 PM, he was coming towards Village Mosque from his home, then he saw that Futwa Sheikh was passing comments and

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taunting to his uncle Zahir Sheikh, upon protest by this witness, he was abused. He has further deposed that his uncle proceeded by his cycle and he also started to proceed ahead, but he was stopped by Futwa Sheikh and also called upon Abad Hussain, Mojaul, Jamil, Sultan, Punni, Taiyab, Hasa, Fakir, Ashu, Masrul. Abad was armed with a gun, Mojaul was bearing pistol in his right hand and hasua in left hand, Futwa was armed with a pistol, Jamil was armed with pistol, Sultan was armed with a hasua, Punni was armed with a pistol, Taiyab was armed with a pistol, Hasa and Fakir were armed with sword, Ashu and Masrul were armed with pistol. Abad Hussain opened fire upon him, which caused injuries on his left ribs below arm pit. Taiyab also fired which did not cause any injury. He has further deposed that Mojaul threw his pistol and gave a hasua blow with intention to kill, which was warded off by his both hands causing injuries on wrists of both hands. Anyhow, he started fleeing away with a view to save his life. He has attributed no overt act to other accused persons and specifically stated that nothing else was done by accused persons. He was brought to Rajmahal Sadar Hospital by bullock cart by Kurban, Nazir, Yusuf, Ali Hussain and Ganesh, where his

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statement was recorded by police. He has further deposed that from the Sadar Hospital, he was referred to Government Hospital Malda for better treatment, where he was admitted for three days. Thereafter, he was referred to P.G. Hospital, Kolkata for plastic surgery and for bringing out pellets. He got treatment for 16 days.

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In his cross-examination, this witness has deposed that Zahir is his own uncle. He also admits that Maksud Allam was father of Futwa, who was murdered while he was village Mukhiya, In that murder case, the uncle of this witness was convicted. Abad Hussain is brother of Late Maksud Alam. He further admits that his uncle Zahir did not call upon him, rather he himself went towards him and asked about the matter, then he said that accused were taunting him, but exact words were not disclosed to him. He also admits that all the accused persons are residing in separate houses. He also admits that counter case has been lodged against him by Taiyab and on the same day, the statement of Taiyab was also recorded by police in the Hospital, but he does not know the same. He denies that Taiyab has also sustained injuries in the said occurrence on back,

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arm and leg. He has denied the suggestion of defence that no occurrence took place, rather he has falsely implicated the accused persons in order to save his skin from the case lodged by Taiyab against him.

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P.W.-8 Nazir Sheikh is also an eye witness to the

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alleged occurrence. According to his evidence, on the date of occurrence at about 5 to 5:30 P.M., he was near the mosque of his village, then he saw scuffle was going on between Zahir and Futwa Sheikh. Upon intervention by Anwarul @ Khudia, he was abused by Futwa Sheikh and thereafter all the accused persons armed with various weapons arrived at place of occurrence. In the meantime, Khudia @ Abad opened gun shot against Anwarul causing injuries on his left ribs below the arm pit. Taiyab also opened fire arm, but no one was injured and it was missed. He has also stated that Mojaul assaulted Anwarul by hasua causing injuries on his both hands. Other accused persons were also pelting stones on the house causing destruction of mud tiles and extending threat to kill and fled away to their respective houses.

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There is nothing in his cross-examination to rebut his aforesaid testimony.

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He has denied the suggestion of defence that he is

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brother-in-law of the informant, hence, he has given false evidence in his favour and has seen no occurrence, rather Taiyab was assaulted in that incident. He has further denied the suggestion that this case has been lodged to save from the case instituted by Taiyab.

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P.W.-10 Dr. Anand Prasad Sah is Medical Officer, P.H.C., Burmu, Ranchi. He was posted at Rajmahal Referal Hospital on 21.02.1997 and conducted medical examination of injured Anwarul Haque @ Khudia at about 8:30 P.M. and found following

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injuries:-

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(I) Sharp cut injury 2 ½” x ¾” x1” on the dorsom of left forearm just about the wrist.

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(II) Sharp cut injury 1 ½” x ¾” x 1” on the dorso lateral aspect of right forearm.

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(III) Multiple gunshot injury on the different places of left scapular region on the back .

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This witness (P.W.-10) opined further that “ Patient

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was referred to Higher Centre for x-ray investigation and for treatment. Detailed report will be submitted after expert opinion .”

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Supplementary Report was given by him on 26.03.1997 after receiving X-ray Plate of injured

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Anwarul Haque along with photocopy of observation report of Malda District Hospital and S.S.A.M. Hospital, Calcutta. After perusal of above report, this witness has opined Injury No. (1) was grievous. Injury Nos. (2) & (3) are simple in nature. Out of which, injury Nos. (1) & (2) caused by sharp cutting weapon, injury No. (3) caused by projectile firearm. Injury Report of injured Anwarul Haque was marked Exhibit-2.

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On the same day, he has examined injured Niam Sheikh and found following injuries:-

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(1) Lacerated injury 1” x ½” x ½” on the occipital region on the scalp, which is opined to be simple in nature and marked as Exhibit-2/1.

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P.W.11, Naveen Prasad is the Investigating Officer of this case. He has recorded the fardbeyan of the informant at Referal Hospital, Rajmahal on 21.02.1997, which was read over and explained to him and due to cut injuries on both hands, his thumb impression was taken. Fardbeyan is marked as Exhibit-1/1. He has also put endorsement on the fardbeyan for registration of the case, which is marked Exhibit-1/2 and formal F.I.R. is marked as Exhibit-3. After registration of FIR, he undertook

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investigation of the case and recorded re-statement of the informant, visited the place of occurrence, which is situated in Village-Koyla Bazar, near Village Mosque on the road about 200 yards distance towards southern side, there is house of informant. He also found huge quantity of brickbats which is indicative of pelting brick bats by the parties on each other. No other material was found at the place of occurrence. He also recorded the statement of witnesses at the place of occurrence. Thereafter, he was transferred and part investigation was handed over to the then Officer-in-Charge, Rajmahal P.S.

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In cross-examination, this witness admits that he has also recorded fardbeyan of Taiyab Alam at Referal Hospital on the same day and on the basis of which, Rajmahal P.S. Case No. 28 of 1997 was registered. He has not prepared the sketch map of the place of occurrence nor he noticed any mark of firing on the nearby houses situated at the place of occurrence.

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22. On the other hand, defence has also examined 04 witnesses.

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D.W.-1 Md. Islam Sheikh is the local resident of Koyla Bazar and residing in his house situated near the Village Mosque. According to him, till evening no

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occurrence ever took place near the Village Mosque, later on he heard that some occurrence of exchange of assault taken place, wherein Taiyab Sheikh and Futwa were injured, but in his cross-examination, he states that occurrence took place at about 5:00 P.M., he only heard about the occurrence and not seen the same.

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D.W.-2 Lakim Sheikh is also resident of Koyla Bazar, his house is situated near Village Mosque, but has denied any occurrence of assault near the Mosque on 21.02.1997, rather some occurrence took place near the house of Adhir Singh in between Khudia Sheikh and Futwa Sheikh. In the said occurrence, Taiyab was assaulted by farsa and sustained injuries on his left leg. He also admits that Abad Sheikh is his brother-in-law.

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He has denied the suggestion of prosecution that Anmarul Haque was assaulted by accused persons of this case.

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D.W.-3 Ghotka Sheikh has also denied any occurrence near the Village Mosque at Koyla Bazar, rather the some occurrence took place near the house of Adhir Singh on the road wherein Taiyab was assaulted, but in his cross-examination specifically

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admits that he does not know in what case he has come to testify before the court and denied the suggestion of prosecution that Anwarul Haque was assaulted by accused of this case.

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D.W.-4 Nasiruddin Sheikh has testified that on

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21.02.1997 at about 4:00 P.M. some occurrence of exchange of assault took place, wherein Taiyab Alam was assaulted by Nurain Hussain, Zahir, Mousim, Khudia and Choudhary etc. near the house of Adhir Singh. Taiyab has lodged a case against accused persons, but he could not tell the present status of that case. The occurrence took place near the Mosque.

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23. The genesis of occurrence is scuffle between the appellant Futwa @ Mukhtar Alam and Zahir Sheikh (uncle of informant). There is direct and specific allegation that while the informant intervened in the matter. The appellants Futwa and Abad Hussain @ Khudia armed with gun came out to teach a lesson to the informant and other appellants were also assembled with deadly weapons. The evidence, as discussed above, clearly shows that appellant Abad Hussain @ Khudia opened fire arm causing pellets injury to the informant, which was likely to cause his death.

¶156

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¶157

2025:JHHC:12016

¶158

24. Considering the specific overt act of the appellants namely, Futwa & Abad Hussain and also in view of the fact that they have been undergone the sentence of imprisonment awarded to them by the learned trial court and have been released after sustaining full period of sentence, there is no reason to interfere with the impugned judgment of conviction and order of sentence passed against these two appellants. Therefore, the judgment of conviction and order of sentence of the Futwa @ Mukhtar Alam (appellant in Cr.A.(S.J.) No. 860 of 2005) and Abad Hussain @ Khudia (appellant in Cr.A.(SJ) No. 905 of 2006) is upheld .

¶159

25. So far appellant – Mojaul Sheikh (appellant in Cr.A.(SJ) No. 973 of 2006) is concerned , the allegation against him is of giving hasua blow, which is found to be simple in nature. No x-ray plates has been proved, hence, his conviction under Section 324 of the I.P.C. is upheld and conviction under rest of the offences is set aside.

¶160

So far sentence is concerned , it appears that the occurrence is of the year 1997 and more than 28 years have elapsed and the appellant – Mojaul Sheikh has remained in custody for about 4 months and 01

¶161

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¶162

2025:JHHC:12016

¶163

week and has been sufficiently punished. Therefore, considering the facts and circumstances of the case, nature of offence committed by the appellant-Mojaul Sheikh, this Court award the sentence of imprisonment already undergone for the offence under Section 324 of the I.P.C.

¶164

26. It is also apparent that no specific overt act against all other surviving appellants namely, Mashrul Sheikh (appellant in Cr.A.(SJ) No. 905 of 2006), Punni Sk. @ Multan Sk. and Taiyab Alam (appellants in Cr.A.(SJ) No. 1041 of 2006) has been attributed by the prosecution witnesses. The appellants, who have died during pendency of these appeals were also convicted only with the aid of Section 149 IPC and also for the offence under Section 147/148 IPC. Admittedly, the informant (P.W.-7), P.W.-5 and P.W.-6 have supported the prosecution case, but have not attributed any overt act against these appellants, therefore, it cannot be concluded that all accused persons at any point of time formed any unlawful assembly with any particular common object and in furtherance thereof have committed any offence.

¶165

27. In view of above, judgment of conviction and order of sentence of appellants namely, Mashrul Sheikh

¶166

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¶167

2025:JHHC:12016

¶168

(appellant in Cr.A.(SJ) No. 905 of 2006), Punni Sk. @ Multan Sk. and Taiyab Alam (appellants in Cr.A.(SJ) No. 1041 of 2006) is hereby set aside and they are acquitted from the charges levelled against them.

¶169

28. Accordingly, Cr.A. (SJ) No. 860 of 2006 is dismissed.

¶170

29. Cr.A.(SJ) No. 905 of 2006 and Cr.A.(S.J.) No. 973 of 2006 are partly allowed.

¶171

30. Cr.A.(S.J.) No. 1041 of 2006 is allowed.

¶172

31. Appellants namely, Mashrul Sheikh, Mojaul Sk., Punni Sk. and Taiyab Alam are on bail, as such they are discharged from the liability of bail bonds. Sureties are also discharged.

¶173

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

¶174

(Pradeep Kumar Srivastava, J.)

¶175

Jharkhand High Court, Ranchi Dated : 04^th April, 2025 Sunil / N.A.F.R.

¶176

Page 27 of 27

Mojaul Sk v. State of Jharkhand

Case brief

What is this about?

Mojaul Sk v. State of Jharkhand

Case brief

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