ISHRAIL MIAN Ž MD.ISHRAIL MIAN vs STATE OF JHARKHAND

2026:JHHC:26750

IN THE HIGH COURT OFJHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 1402 of 2006
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[Against the judgment of conviction and sentence dated 21.09.2006 passed by
rd
the learned 3 Additional District & Sessions Judge, Dumka (F.T.C) in
Sessions Case No. 46 of 2002 arising out of Saraiyahat P.S. Case No. 52 of
1995 corresponding to G.R. No. 368 of 1995.]
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Md. Ishrail Mian @ Ishrail Mian @ Md. Ishrail, S/o. late Shamsuddin,
resident of village- Baniyara, P.S.- Hansdiha, District- Dumka, Jharkhand.
……Appellant
Versus
The State of Jharkhand …. Respondent
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For the Appellant : Mr. Ranjan Kr. Singh, Advocate
: Mr. Indu Shekhar Gupta, Advocate
For the Resp.-State : Mr. Jitendra Pandey, A.P.P.
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PRESENT
CORAM: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
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th
CAV On: 25 August, 2026 Pronounced On: 31/08/2026

1. Heard learned counsel for the appellant as well as learned A.P.P.

2. Instant criminal appeal is directed against the judgment of
rd
conviction and sentence dated 21.09.2006 passed by the learned 3
Additional District & Sessions Judge, Dumka (F.T.C) in Sessions Case
No. 46 of 2002 arising out of Saraiyahat P.S. Case No. 52 of 1995
corresponding to G.R. No. 368 of 1995, whereby and whereunder, the
appellant has been convicted for the offence under Section 395 of the
I.P.C. and sentenced to undergo R.I. for 7 years alongwith the fine of
Rs. 3,000/-with default stipulation.
Factual Matrix:-
3. Factual matrix giving rise to this appeal is that in the night of
20/21.05.1995 at about 12:30 A.M., the informant alongwith his
associates were sleeping outside the labour quarter near Jiyajore

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Mission. On hearing sound of some persons, he woke up and saw that
one dacoit has put pistol on him and threatened to kill. Another dacoit
was standing beside him with farsa in hand and third dacoit was
standing near him. Two dacoits have taken Hopna Murmu in their
custody on the point of country made pistol. Two dacoits have taken
Batan Hembrom in their custody and one dacoit has taken Rajeshwar
Hembrom in custody and three dacoits were standing near labour
quarter and 2-3 dacoits were standing beside the house. The dacoits
having pistol commanded the informant to give keys otherwise he will
be shot dead. Informant told that the key is with Hopna, then dacoit ran
to Hopna and demanded keys under threatening to kill and the key was
handed over to dacoits. The dacoit entered into the house by opening the
door and started searching and asked the informant about Rs. 10,000.
The informant group told that money is kept with sister. In the
meantime, dacoits succeeded in searching the money and took it. They
also snatched HMT watch form the informant and his associates. They
were brought in a room by the dacoits and when one of the dacoits told
to shoot them all as they have expelled them from work. The informant
identified the sound and it was sound of the present accused Ishrail
Mian, who had worked in the mission about 4-5 months ago. Then, he
turned towards him and identified him. When the dacoits fled away, the
informant went to the sister of Mission and narrated the incident. Next
morning, they went to Dudhani and told everything to father of the
Mission. The informant alleges that the dacoits took away Rs. 9,100/- in
cash, three HMT watch.
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4. On the basis of above information, F.I.R. was registered being
Saraiyahat (Hansdiha) P.S. Case No. 52 of 1995 for the offence under
Section 395 I.P.C. against the present appellant.
5. After completion of investigation, charge-sheet was submitted
against the accused and after taking cognizance, the case was committed
to the court of sessions, where Sessions Case No. 46 of 2002 was
registered.
6. The appellant denied the charge levelled against him and claimed to
be tried.
7. In the course of trial, altogether 8 witnesses have been examined by
the prosecution apart from following documentary evidence:-
I. Ext.-1: Signature of PW-1 & PW-3 on the fardbeyan.
II. Ext. -1/1: Signature of informant on the fardbeyan.
III. Ext.-1/2: Signature of PW-5 on the fardbeyan.
IV. Ext-1/3: Signature of PW-6 on the fardbeyan.
V. Ext.-2: fardbeyan
VI. Ext.-3: formal F.I.R.
VII. Ext.-4: case diary from para-1 to 210.
8. On the other hand, defence has not examined any oral or
documentary evidence.
9. The learned Trial Court after scrutinizing the evidence oral as well
as documentary led by the respective parties, arrived at definite
conclusion about the guilt of the appellant for the offence under Section
395 of the I.P.C. Accordingly, the learned Trial Court convicted and
sentenced the appellant as stated above, which has been assailed in this
appeal.
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Submission on behalf of appellant:-
10. Assailing the impugned judgment, the learned counsel for the
appellant has submitted that the learned Trial Court has not appreciated
properly the F.I.R. as well as the statement of the witnesses examined
during trial. It is further submitted that the informant has named the
accused in the F.I.R. only on the basis of identity of his sound. The
informant has alleged that when the dacoits looted Rs. 10,000/- and
watches of his associates, and thereafter, he heard the sound of the
accused and identified him. There is possibility of false implication
because it is here apparent that the accused was also working with the
informant and his associates and it has also come during the evidence of
witnesses that there was dispute with regard to wages between the
appellant and the informant. It is further submitted that the informant
has lodged the case against this appellant only but when the dacoity
took place, the informant has himself stated that they were more than 10
persons and the informant with the view to take vengeance, implicated
this appellant only. There is no recovery of any amount and watches
with respect to dacoity of the said occurrence. It is further submitted
that most of the witnesses have also been declared hostile. Therefore,
conviction and sentence of the appellant is liable to be set aside and this
appeal may be allowed.
Submission on behalf of State:-
11. Learned A.P.P. has opposed the aforesaid contentions raised by
learned counsel for the appellant and defending the impugned judgment
has submitted that the learned Trial Court has very wisely and aptly
scrutinized the evidence adduced by the prosecution. It is further
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submitted that the appellant has been identified by the informant and his
identification has also been corroborated by the eye witness of this case.
Therefore, there is no illegality or infirmity in the impugned judgment
of conviction and sentence of the appellant calling for any interference
in this appeal, which is devoid of merits and fit to be dismissed.
Analysis, Reasons and Decision:-
12. I have gone through the record of the case along with the impugned
judgment and order in the light of the contentions raised on behalf of
both side.
13. The only point for consideration of this appeal is, as to whether the
impugned judgment of conviction and sentence suffers from any serious
error or law calling for any interference or not?
14. Before adjudicating the above point, it is pertinent to apprise with
the testimony of the witnesses examined during trial.
15. It appears that prosecution has examined altogether eight witnesses
during trial, however, PW-1 Hopna Murmu has been examined twice as
PW-1 & PW-3. According to the evidence of Hopna Murmu (PW-1 &
PW-3) , while he was sleeping in Jiyajore Mission alongwith informant
Raja Soren, Batan Hembrom and Rajeshwar Hembrom after having
their dinner, the dacoits entered and point out gun. The dacoits asked
key from Raja but Raja told them that key is with me. They took the key
and opened the quarter. Three dacoits entered in the quarter and
searched money. Dacoits against asked from Raja about Rs. 10,000/-
then Raja replied that money is kept with sister. In the meantime, one
dacoit searched out the money. The dacoits snatched the watch of Raja,
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Rajeswar and Batan. He further states that he identified only the accused
Ishrail. They tied him in the room and threatened not to raise alarm.
In his cross-examination, he admits that the accused was also
working there as mistri. He also admits that he did not raise alarm. He
further states in his cross-examination as PW-3 that on the date of
occurrence, contractor had come to give them wages. The accused
Ishrail was given Rs. 200/-. Till 6:00 P.M., the accused was also
present there.
PW- 2 Batan Hembrom has supported the factum of dacoity. He has
stated that he was sleeping with Raja Soren, Rajeshwar Hembrom and
Hopna Murmu and then dacoits came and looted the money. He also
identified the accused as one of the daocits and said that he was masson
and was working with them but he was expelled from the work.
PW-4 Rajeshwar Hembrom- This witness has been declared hostile
but he has supported the factum of dacoity. He further states that he did
not identify any of the dacoits.
PW-5 Father Ambroj is the father of Shivpahar Mission. He states that
he wsa at Bishop house of Dudhani in the night of occurrence. Munshi
Raja Soren and some persons came to him in the morning on
21.05.1995 and told that in the last night 12-14 persons armed with
pistol, lathi, knife etc. came and took away money kept with informant
Raja Soren for labour payment and snatched watches and fled away
after closing them in the room. They also told him that they have
identified one person among the dacoits but he is not remembering the
name of that man. He informed the contractor and they went to Jiyajor
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Mission and saw things there and thereafter went to police station and
police case was instituted on the fardbeyan of Raja Soren.
PW-6 Gautam Sinha is the contractor of Jiyajore Mission. He states
that dacoity took place in the night of 20/21.05.1995. He had given Rs.
10,000/- to Raja Soren for labour payment out of which Rs. 900/- was
paid to the labourers and remaining money was with him, which was
looted in dacoity and dacoits also looted their watches. Raja Soren had
indentified one of the dacoits. He was the accused Israil Mian.
PW-7 Abdhesh Thakur is the police officer, who has arrested the
accused and submitted charge-sheet against him. He has identified the
writing of fardbeyan and case diary, marked ext- 2, 3 & 4.
In his cross-examination, he admits that he has not investigated the
case and hence, he has no personal knowledge of this case.
PW-8 Kamal Chandra Kumar has deposed on behalf of the
investigating officer. This witness has stated that Rajeshwar Hembrom
(PW-4) had stated before the police that dacoits had closed them in a
room and they fled away. He identified the accused.
16. On the other hand, no oral or documentary evidence has been
adduced by defence. The case of the defence is denial from the
occurrence and false implication from occurrence and false implication
due to dispute of wages.
17. I have given anxious consideration to the overall aspects of the case
and the documentary evidence available on record.
18. From the oral testimony of witnesses as discussed above, it is quite
obvious that none of the witnesses have been able to identify the
appellant as perpetrates in the alleged occurrence of dacoity rather they
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were acquainted with the appellant because he was also working with
them as mason. The witnesses have also admitted the dispute about
wages raised by appellant to the informant of this case. It also transpires
that the witnesses have heard from informant about involvement in this
occurrence, as he was identified by his voice. The informant has not
been examined in this case. It further appears that only on the basis of
voice identification of appellant by the informant as disclosed to other
witnesses examined in this case, the learned Trial Court has held the
appellant guilty for the offence under Section 395 of the I.P.C.
Admittedly, no robbed money or watches have been recovered from
possession of the appellant.
19. The cumulative effect of evidence brought on record as to identity
of appellant as perpetrator in crime is based on voice identification by
informant, who himself was not examined, such type of evidence is of
very weak nature and can't be made basis of conviction for such a
serious offence.
20. In view of above discussion and reasons, the conviction of the
appellant for the offence under Section 395 of the I.P.C. cannot be
maintained. Hence, extending the benefit of reasonable doubt, the
appellant is acquitted from charge under Section 395 of the I.P.C. The
impugned judgment is hereby set aside.
21. This appeal is, accordingly, allowed .
22. Pending I.A.(s), if any, stands disposed of.
23. The appellant is on bail. He is discharged from the liability of bail
bond and sureties are also discharged.
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24. Let a copy of this judgment alongwith the trial Court records be
sent back immediately to the concerned Trial Court for information and
needful.

(Pradeep Kumar Srivastava, J.)
High Court of Jharkhand at Ranchi
Dated: 31/08/2026
Rahul- NAFR
Uploaded On: 04/09/2026
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