RAFIQUE SK And ORS vs STATE OF JHARKHAND

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IN THE HIGH COURT OFJHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 171 of 2005
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[Against the judgment of conviction dated 20.01.2005 and sentence dated
25.01.2005 passed by the learned Addl. Sessions Judge, F.T.C., Rajmahal in
Sessions Case No. 14 of 2004 arising out of Rajmahal P.S. Case No. 35 of 1999
corresponding to G.R. No. 70 of 1999.]
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1. Rafique Sk., S/o. late Hajrat Sk.

2. Saheb Sk., S/o. late Hajrat Sk.

3. Islam Sk., S/o. Gaudar Sk.

4. Palu Sk., S/o. Gaudar Sk.
5. Bhopal Sk., S/o. Bhogu Sk.
6. Gondar Sk., S/o. late Hajrat Sk.
7. Bhogu Sk., S/o. late Hajrat Sk.
All are residents of Village- Bengdubbi, P.S.- Rajmahal, Dist.-
Sahibganj. ……Appellants
Versus
1. The State of Jharkhand
2. Jakir Sk., S/o. Imam Ali Sk., R/o. Bengdubi, P.O. & P.S.- Rajmahal,
Dist.- Sahibganj. …. Respondents
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PRESENT
CORAM: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellants : Mr. S. S Choudhary, Advocate
For the Resp.-State : Mr. Azeemuddin, A.P.P.
For the Resp. No. 2 : None
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JUDGMENT
th
CAV On: 16 September, 2026 Pronounced On: 06/11/2026

1. Heard learned counsel for the appellants as well as learned A.P.P.
However, no one has appeared on behalf of the respondent no. 2.
2. Instant criminal appeal is directed against the judgment of
conviction dated 20.01.2005 and order of sentence dated 25.01.2005
passed by the learned Addl. Sessions Judge, F.T.C., Rajmahal in
Sessions Case No. 14 of 2004 arising out of Rajmahal P.S. Case No. 35

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of 1999 corresponding to G.R. No. 70 of 1999, whereby and
whereunder, the appellants have been convicted for the offences
punishable under Sections 307, 341 & 148 of the I.P.C. and Section 27
of the Arms Act and sentenced to undergo R.I. for 5 years for the
offence under Section 307 of the I.P.C.; further S.I. for one year for the
offence under Section 148 of the I.P.C.; S.I for one month for the
offence under Section 341 of the I.P.C. and R.I. for 3 years for the
offence under Section 27of the Arms Act. All the sentences were
directed to run concurrently.
Factual Matrix:-
3. Factual matrix giving rise to this appeal is that on 17.02.1999 at
about 7 A.M., the informant was at his field (bathan) situated at 6 no.
colony, Jhauwabana Diyara. It is alleged that all the above named
accused persons being armed with deadly weapon and firearm came at
his field (bathan) and surrounded it. It is further alleged that accused
Saheb Sk. instructed his associated to shoot the informant. Thereafter,
accused Rafique Sk. took out country made pistol fired at the informant,
which slipped. The informant also tried to flee away but the accused
persons surrounded him and started assaulting with an intention to kill
him. It is further alleged that the accused Rafique Sk. again fired at
informant, which hit at the left hand below wrist and bullet thrust out
the hand. However, one Saifuddin Sk., who was with him, managed to
flee away from there and narrated the occurrence to the villagers. The
informant states reason behind the occurrence that he resided at his field
(bathan) for the purpose of cultivation but these accused used to destroy
the crops and also used to create disturbance in his cultivation.
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On the basis of fardbeyan of the informant-cum-injured, F.I.R.
(Rajmahal) P.S. Case No. 35 of 1999 dated 17.02.1999 was registered
for the offences under Sections 147, 148, 149, 323 & 307 of the I.P.C.
and 27 of the Arms Act.
4. After completion of investigation, the charge-sheet was submitted
against accused persons and after taking cognizance, charges were
framed under Sections 147, 148, 149, 323, 341 & 307 of the I.P.C. and
Section 27 of the Arms Act and the case was committed to the court of
Sessions, where Sessions Case No. 14 of 2004 was registered.
5. The appellants have denied the charges levelled against them and
claimed to be tried.
6. In the course of trial, altogether 10 witnesses were examined by the
prosecution apart from following documentary evidence:-
I. Exhibit-1: Injury report of injured Jakir Sk.
II. Exhibit-1/1: supplementary X-ray report.
III. Exhibit-2: X-ray report.
IV. Exhibit- 3 : Signature of informant on fardbeyan.
V. Exhibit-4: Fardbeyan
VI. Exhibit-5: Endorsement of O/c Ramsobhit Mochi on fardbeyan.
VII. Exhibit-6: Formal F.I.R.
7. On the other hand, the defence has not adduced any oral or
documentary evidence.
8. The learned Trial Court after scrutinizing the evidence oral as well
as documentary led by the prosecution, arrived at definite conclusion
about the guilt of the appellants for the offences under Sections 148,
341 & 307 of the I.P.C. and Section 27 of the Arms Act and sentenced
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them accordingly as stated above, which has been assailed in this
appeal.
Submission on behalf of appellants:-
9. Assailing the impugned judgment, the learned counsel for the
appellants has vehemently argued that admittedly the investigating
officer, who investigated the case, has not been examined, which causes
serious prejudice to the defence. It is further submitted that during
examination of the witnesses, it has not been revealed by the witnesses
that there was assemblage of the accused persons at the time of assault
to the injured as witnesses are hearsay and heard about the occurrence
from the injured. It is also submitted that the injured has sustained
injuries by the fire arm but there is no recovery of fire arm bullet. The
allegation of fire arm has been levelled against accused Rafique Sk.
only. It is also submitted that the doctor, who has been examined as
PW-8, has opined the injuries to be simple in nature. The injuries
sustained by the injured are not on vital parts of the body. Therefore, the
impugned judgment of conviction and order of sentence is fit to be set
aside and this appeal may be allowed.
Submission on behalf of State:-
10. Per contra; learned A.P.P. has opposed the aforesaid contentions
raised by learned counsel for the appellants and defending the impugned
judgment has submitted that the learned Trial Court has very wisely and
aptly considered the overall aspects of the case and the testimony of
ocular witnesses, who have categorically proved the charges levelled
against the appellants beyond all reasonable doubt. The appellants
forming an unlawful assembly have acted in concerted manner in
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assaulting the injured-cum-informant, due to which the injured
sustained injuries. It is further submitted that the evidence of the injured
has been fully corroborated by the medical evidence regarding injuries
sustained by the injured. The injured has sustained fire arm injuries on
his hand and left side ribs. Therefore, there is no reason to interfere with
the impugned judgment, which suffers from no illegality or infirmity.
This appeal is devoid of merits and fit to be dismissed.
Analysis, Reasons and Decision:-
11. 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.
12. The only point for consideration in 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?
13. Before adjudicating the above point, it is pertinent to apprise with
the testimony of the witnesses examined during trial specially
informant, injured and the doctor who examined the injured.
PW-9 Jakir Sk. is the injured-cum-informant of this case.
According to his evidence, on the date of occurrence at about 7:00
A.M., he was at his field (bathan) and saw the accused persons coming
towards him and they surrounded his bathan and started abusing him.
Thereafter, accused Saheb Sk. ordered to his associates to kill him.
Then, the accused Rafique Sk. fired at him by a country made pistol
which touched his left side ribs and slipped and thus he received injury
on his left side of ribs. Thereafter, he started fleeing away, then all the
accused persons surrounded him and started assaulting him with fists
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and lathi. Again, accused Rafique Sk. fired at him and the bullet struck
at his left hand and came out from the opposite side, as a result of
which, there was bleeding from his left hand. He has further stated that
on the way, he met with his brother Nazir Sk., who brought him to his
house. From house, he came to Rajmahal hospital for treatment. This
witness further states that whatever he had given in the fardbeyan, he
has stated here also. He has identified his signature on the fardbeyan,
which is marked as Ext.-3. Police recorded his re-statement and
thereafter, doctor referred him to Malda for treatment.
In his cross-examination at length, he expresses no knowledge as
to whether the place of occurrence is situated at Bengal. He has also no
any document of the field (bathan) and cannot say the field (bathan)
belongs to whom. This witness further states that he received fire arm
from the distance of 15 hand. He had shown his cloths to the police,
which was not seized rather he was told to keep it for further need. He
has further stated that at Maldah hospital, doctor operated the wound.
He further admits that he sustained assault of lathi blow on his whole
body, which was seen by the doctor but can't tell the name of accused
person, as to who had assaulted him. He further denies the fact that he
has falsely implicated these appellant and also lodged case due to land
dispute.
PW-8 Dr. Satish Kumar Sinha has examined the injured (PW-9)
and found the injuries on the person, which are as under:-
1. Lacerated wound oval in shape- 1½" x ½" x 1/8" over left side
of chest in mid axillary line.
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There are two holes in T-shirt & one hole in ganji which the
patient is wearing.
X-ray chest advised.
2. Wound of enterance 2/3" x ¼". Muscle deep in middle of left
forearm in medial side oval in shape edges are inverted and
ecchymosed.

3. Wound of exit 1" x ½". Muscle deep edges are ragged and torn
with multiple haemorrhagic spots in surrounding skin. It is
situated in left forearm above wrist.
For both injuries no. 2 & 3 x-ray left forearm advised both the
injuries are attached with one track.
4. Abrasion ½" x ¼" over left upper arm.
Patient was referred to higher centre immediately for further
management.
Nature:- Opinion reserved for injury no. 1, 2 & 3. Injury no. 4 is
simple.
Cause of injury:- Injury Nos. 1, 2, & 3 are caused by fire arm.
Injury No. 4 was hard and blunt substance.
Time:- within 6 hours.
Mark of identification of the injured:- An old scare mark over
left eyebrow.
He has proved the injury report of the injured marked as Ext.-1.
The X-ray report has been given by Modern Diagnostic Centre,
Maldah and it has been given by Dr. C.D. Basak. The x-ray
report has also been admitted to evidence and it is marked as
Ext.-2. The opinion regarding injury of the injured, as per x-ray
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report, the nature of these injuries were simple in nature. Doctor
has also said that he submitted the 2 x-ray plate with the report
to Rajmahal P.S. The supplementary report is Ext.- 1/1.
In cross-examination, this witness has stated that he has not found
any injury on the palm of the left hand of the injured, rather he found
only two injuries, i.e., injury no. 2 and 3 caused by fire arm. Except
that, no other injury caused by fire arm was found in left hand.
PW-1 Anil Choudhary & PW-2 Subodh Choudhary have been
declared hostile by the prosecution as they have shown unawareness
about the occurrence.
PW-3 Sher Mohammad Sk. @ Sheru Sk. has stated the on the
alleged date of occurrence, he was at his home and saw that the injured
coming his house. He went to his house, where the injured stated that
the accused persons surrounded him and assaulted by firearm.
Thereafter, he alongwith other villagers took the injured to hospital.
In his cross-examination, this witness admits that he has not seen
the occurrence and stated about the occurrence by hearing.
PW-4 Saifuddin Sk. has stated that on the alleged date of
occurrence, he had gone to Diyara for grazing his buffellos and had
stayed at this field (Bathan). In the morning, the accused perons
surrounded the field (bathan) of the injured accused Saheb Sk. ordered
the accused Rafique Sk. to shoot the injured. Thereafter, accused
Rafique Sk. fired at the injured with an intention to kill him but it
slipped touching the left side ribs. Thereafter, the injured started fleeing
away but he was surrounded by the accused persons and they started
assaulting with fists and lathi. Again, accused Rafique Sk. fired at the
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injured, which hit at the left hand of the injured and it came out from the
opposite side. The injured, somehow, escaped and fled away.
This witness has been cross-examined by the defence, where at
para-11, he has stated that the injured had sustained only two injuries.
One at left side on the ribs and another on left hand. He further states
that at the time of incident, he was present at a very short distance.
There were accused persons only. He has also seen the country made
pistol. He has further stated that he can't tell the date, month and year of
the incident.
PW-5 Mukhtar Sk. has also stated that he has seen the injuries on
the hand sustained by the injured. He came to know from the injured
that he was assaulted and fired by the accused persons.
PW-6 Kuddus Sk. has also stated that he was at his home and saw
the injuries on left hand and left side of injured. He asked the injured
then he replied that accused persons have assaulted him. Nothing more
has been stated by the injured to him.
In his cross-examination, this witness admits that he is not any eye
witness of the occurrence. He has also not seen any fire arm bullet.
PW-7 Imam Ali Sk. is the father of the injured. He has stated that
on the date of occurrence, his son had gone to field (Bathan) and the
accused persons surrounded his son and Rafique Sk. on instruction of
accused Saheb Sk. opened fire at his son. He has further stated that he
has seen the swelling injury on his son and also bullet injury on the left
side hand and left side below armpit. There was hole in the ganji which
was caused by the bullet. This witness has further stated that his son
told him about the occurrence and thereafter he took his son to hospital.
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In his cross-examination, this witness admits that he was at his
home and has not seen the occurrence. He is not the eye witness of the
occurrence. He has further stated the police had recorded the statement
of his son, while he was being treated by the doctor at hospital.
PW-10 Gokhul Ansari is a formal witness, who has proved the
fardbeyan marked as Ext.-4, endorsement on fardbeyan marked as Ext.-
5 and formal F.I.R. marked as Ext.-6.
14. I have given anxious consideration to the overall aspects of the case
and the material evidence available on record.
15. From the aforesaid discussion of ocular testimony of witnesses, it is
crystal clear that in order to prove an offence under section 307 of I.P.C.
the essential mensrea to constitute the said offence has to be proved.
Mensrea can be inferred from the kind of weapon used, nature of injury,
force used and part of body etc. The onus lies on the prosecution that
the accused has caused an act with intention or knowledge, and under
such circumstances that if such act was successful, death was caused, he
would be guilty of murder.
16. Further, the Hon'ble Apex Court in the case of Jage Ram Vrs. State
of Haryana as reported in (2015) 11 SCC 366 , has held at para-12 that:-
" 12 . For the purpose of conviction under Section 307 I.P.C., 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 I.P.C., it is not essential that fatal
injury capable of causing death should have been caused. Although the
nature of injury actually caused may be assistance in coming to a finding
as to the intention of the accused, such intention may also be adduced
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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."
17. In the instant case, the occurrence took place when the injured was
at his field (Bathan). The accused persons came there and surrounded
him and assaulted by fire arm, upon which the injured sustained injuries
on his left hand and left side ribs. PW-8 Dr. Satish Kumar Sinha has
examined the injured and opined the injury nos. 1, 2 &3 are fire arm
injuries and the injuries are simple in nature.
Injuries sustained by the injured and manner of assault does not
indicate that the required intention or knowledge for constituting the
offence under section 307 of I.P.C. rather constitute offence under
Section 324 of the I.P.C. Since the allegation of gunshot was found
against the accused Rafique Sk., therefore, only accused Rafique Sk. is
held guilty for the offence under Section 324 of the I.P.C. and rest of the
appellants are acquitted from charge under Section 324 of the I.P.C.
18. So far Sections 341 & 148 of the I.P.C. is concerned, the accused
persons have restrained the injured by surrounding him and assaulted
him. Therefore, offence under Sections 341 & 148 of I.P.C. is upheld.
19. So far Section 27 of the Arms Act is concerned, the injured has
specifically taken the name of accused Rafique Sk. for firing upon him.
As such, only accused Rafique Sk. is held guilty under Section 27 of the
Arm Act and rest of the appellants are acquitted.
20. So far quantum of sentence awarded to the appellants by the
learned Trial Court is concerned, the appellant Rafique Sk. has already
remained in custody for about six months. The occurrence is of the year
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1999 and more than two and half decades have been elapsed and the
appellants have also sustained the agony of trial since long. Therefore,
period of custody already undergone by them meets the ends of justice.
21. In view of above discussion and reasons, I find that the appellants
have sufficiently been punished for their guilt. Accordingly, in the ends
of justice, the sentence of the appellants is reduced / modified and they
are awarded the sentence of imprisonment already undergone by them.
22. Accordingly, this appeal is dismissed on merits with modification
in sentence to the extent as mentioned above.
23. Pending I.A.(s), if any, stands disposed of.
24. All the appellants are on bail. As such, appellants are discharged
from liability of their bail bonds and sureties are also discharged.
25. 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: 06/11/2026
Rahul- NAFR
Uploaded On: 06/11/2026
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