Md Mustafa Alias Gulam Mustafa And Anr vs The State Of Jharkhand
- Court
- Jharkhand High Court
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 1666 of 2017
[Against the judgment and order of conviction and sentence dated
02.08.2017 & 08.08.2017 respectively, passed by learned District &
Additional Sessions Judge-III, Godda in S.T. No. 140 of 2007]
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1. Md. Mustafa @ Gulam Mustafa, son of Anwar Ali, resident of Village-
Rajoun, P.O.-Madhura, P.S.-Belbadda, District-Godda, Jharkhand
2. Md. Salim, son of Late Mahabulla, resident of Village-Amdiha, P.O.-
Madhura, P.S.-Belbadda, District-Godda, Jharkhand
... ... Appellants
Versus
The State of Jharkhand … … Respondent
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P R E S E N T
SRI ANANDA SEN, J.
SRI PRADEEP KUMAR SRIVASTAVA, J.
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For the Appellants : Mr. Venkatesh Kumar, Advocate
Mr. Jai Shankar Tripathi, Advocate
For the State : Mr. Sanjay Kumar Srivastava, A.P.P.
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JUDGMENT
C.A.V. on 05.10.2026 Pronounced on 06/11/2026
Per- Pradeep Kumar Srivastava, J:
1. We have heard the arguments of Mr. Venkatesh Kumar, learned
counsel for the appellants and Mr. Sanjay Kumar Srivastava, learned
A.P.P. for the State.
2. The instant criminal appeal is directed against the judgment and
order of conviction and sentence dated 02.08.2017 & 08.08.2017
respectively, passed by learned District & Additional Sessions
Judge-III, Godda in S.T. No. 140 of 2007, whereby and whereunder
the appellants have been held guilty for the offence under Section
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302/34 of the I.P.C. and sentenced to undergo imprisonment for life
along with fine of Rs.10,000/- each with default stipulation.
Factual Matrix: -
3. The factual matrix giving rise to this appeal, as per the fardbeyan of
the informant, Md. Anwar Ali, recorded by S.I. Ramchandar
Mahato, is that on 22.04.2007, at about 5:00 a.m., he had gone to
Khaira Matukia bahiyar to plough his field. He was accompanied by
his second wife, Sadika Khatoon, who helped him drive the oxen
there. He further stated that at around 6:00 a.m., his son Mustafa,
aged about 27 years (from his first wife), accompanied by his father-
in-law Salim and brother-in-law Minsar arrived at the place of
occurrence. They demanded that a half share of the land be given to
Mustafa and that the land be ploughed only after the share was
given. Sadika Khatoon replied that her children were very young and
the land would be partitioned only when they shall attain age of
majority. At this, the accused persons left, threatening them with dire
consequences. At about 7:20 a.m., when Sadika Khatoon was
returning to her house and had reached west of village Rajoun and
east of the Peepal Bam Kali Sthan , near the field of the late Ali
Mohammad, the above-named three accused persons killed her by
shooting her and slitting her throat. The informant further stated that
upon hearing the gunshot, he rushed toward the place of occurrence
and saw the accused persons fleeing. They were chased by villagers
and Md. Mustafa was caught, while the other accused persons
managed to escape. A country-made pistol was recovered from
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Mustafa and a dagger lying near the body of the deceased was seized
by the police.
On the basis of above fardbeyan , Belbadda P.S. Case No. 53
of 2007, dated 22.04.2007 was registered against the accused
persons for the offence under Sections 302/34 of the I.P.C. and
Section 27 of the Arms Act.
A separate case, being Meharma (Belbadda) P.S. Case No. 54
of 2007 was also instituted against the accused Mustafa under Arms
Act, which was tried separately.
4. After completion of investigation, charge-sheet was submitted vide
charge-sheet No.21 of 2007, dated 19.07.2007, showing no evidence
against Minsar but finding sufficient evidence against Md. Mustafa
@ Gulam Mustafa and Md. Salim for the offence under Sections
302/34/120(B) of the I.P.C. and 27 of the Arms Act. Accordingly,
cognizance was taken by learned C.J.M. and subsequently, the case
was committed to the Court of Sessions, where S.T. No. 140 of 2007
was registered. Accused persons pleaded not guilty and claimed to
be tried.
5. In the course of trial altogether 11 witnesses were examined by the
prosecution: -
(i) P.W.-1-Abdul Gani
(ii) P.W.-2-Md. Faruque
(iii) P.W.-3-Karim
(iv) P.W.-4-Rahim
(v) P.W.-5-Md. Anwar Ali (informant of this case)
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(vi) P.W.-6-Nazir Ansari
(vii) P.W.-7-Md. Aftab Alam
(viii) P.W.-8-Rayeesh Alam
(ix) P.W.-9-Dr. Dilip Kumar Choudhary
(x) P.W.-10-A.S.I., Hariram Pandey
(xi) P.W.-11-Md. Jahangir
6. Apart from oral testimony, following documentary evidence have
also been adduced by prosecution: -
(i) Exhibit-1-Signature of witness Md. Faruque on inquest
report
(ii) Exhibit-2-Signature of witness Anwar Ali on fardbeyan
(iii) Exhibit-3-post-mortem report
(iv) Exhibit-4-Signature of Md. Jahangir on seizure list
(v) Material Exhibit-1-Knife
7. On the other hand, no oral evidence has been adduced on behalf of
defence. However, the defence has adduced following documentary
evidence: -
(i) Exhibit-A-Signature of witness Md. Anwar Ali
(informant P.W.5) on the application dated 06.06.2007
(ii) Exhibit-B, Certified copy of judgment dated 13.03.2012,
st
passed by learned Judicial Magistrate, 1 Class, Godda
8. The learned Trial Court after considering the evidence of prosecution
arrived at definite conclusion about guilt of the appellants for the
offences charged against them and convicted and sentenced them as
stated above, which has been assailed in this appeal.
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Submissions on behalf of the appellants: -
9. The learned counsel for the appellants assailing the impugned
judgment challenge the same on following main grounds: -
(i) Out of 11 witnesses examined by prosecution, P.W.s-1, 2,
3, 4, 6, 7 and 8 have been declared hostile by the prosecution and
have not supported the prosecution story as depicted in the F.I.R.
(ii) P.W.-11 is the witness of seizure list, who simply admits
his signature got by police on a blank paper and nothing was
recovered in his presence.
(iii) P.W.-5, Md. Anwar Ali, who happens to be informant-
cum-father of the appellant No.1, has also admitted in his evidence
that his son, Md. Mustafa, was apprehended by villagers on the basis
of suspicion and no firearm was recovered from his possession. He
also admitted in his cross-examination that he has not disclosed the
name of appellant No.1, in his fardbeyan. At that time, the informant
had become unconscious and someone else had filed written report
to the police station and later on managed to take signature of the
informant on fardbeyan .
(iv) The appellant No.2 has also been implicated only on the
basis of suspicion and he was not apprehended from the place of
occurrence, although he happens to be father-in-law of the appellant
No.1 and was aged around 65 years on the date of occurrence. In the
factual scenario as depicted in the F.I.R. there was every likelihood
that the appellant No.2 might have been apprehended due to his old
age and incapacity to run fast. Therefore, appellant No.2 has only
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been dragged in this case falsely merely because he was also
supporting the claim for partition of the landed property raised by his
son-in-law.
(v) The appellant No.1 has been acquitted from the charge
under Section 25(1-B)(a)/26 of the Arms Act for which G.R. Case
No.394/2007 was separately instituted.
(vi) The learned Trial Court has failed to take into
consideration the documentary evidence Exhibit-A and Exhibit-B
adduced by defence showing innocence of appellant No.1 and
appellant No.2 and has convicted without any evidence against them
and without showing any overt act.
(vii) The seized knife in this case has not been connected to
be used in commission of murder of the deceased. There is no F.S.L.
report about origin and source of any blood or any fingerprint of any
of the accused person.
Therefore, impugned judgment of conviction and sentence of
the appellants suffers from serious error of law and liable to be set
aside, allowing this appeal.
Submissions on behalf of the State: -
10. On the other hand, Mr. Sanjay Kumar Srivastava, learned A.P.P. for
the State opposing the aforesaid contentions raised on behalf of the
appellants has contended that the learned Trial Court has very wisely
appreciated the evidence available on record. The earliest version of
the informant as depicted in his fardbeyan cannot be disbelieved
merely because some improvement and discrepancies during trial
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due to natural inclination towards his son arrayed as an accused for
killing his own stepmother. The police officer, who has recorded the
fardbeyan of the informant (P.W.-5), has clearly proved the same to
be recorded as per dictation of the informant and was read over and
explained to him then he put his signature. The informant, Md.
Anwar Ali (P.W.-5), was examined on 01.09.2012 and categorically
supported the entire prosecution story. His partial cross-examination
was deferred for further date and he was cross-examined on
13.06.2014. Thereafter, Exhibit-A, purported to be an application
filed by him before the Court was marked exhibit and the
discrepancies and contradictions were elicited by defence, which put
an impression of some pressure exerted by his son appellant No.1.
The prosecution story further finds corroboration from the evidence
of P.W.-9 Dr. Dilip Kumar Choudhary, who has conducted autopsy
on the dead body of deceased, wherein injury Nos. 1 and 2 were
opined to be caused by firearm bullet and injury No.3 was caused by
sharp cutting weapon. The injuries were found sufficient to cause
death in ordinary course of nature. The learned Trial Court has
considered all the aspects of the case and the evidence of witnesses
in right perspective and arrived at right conclusion about guilt of the
appellants for the offence charged against them. Therefore, there is
no illegality or infirmity in the impugned judgment calling for any
interference in this appeal, which is devoid of merits and fit to be
dismissed.
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11. We have gone through the record of the case along with the
impugned judgment and order in the light of contentions raised on
behalf of the both side.
12. The only point for determination in this appeal is that “ as to
whether the impugned judgment and order of conviction and
sentence of the appellants passed by learned trial court suffers
from any error of law calling for any interference in this
appeal?”
Analysis, discussions and reasons: -
13. Before delving upon to adjudicate the above point, it appears
pertinent to take brief resume of evidence available on record.
14. From perusal of record, it is quite obvious that out of 11 witnesses
examined by prosecution P.W.-1-Abdul Gani, P.W.-3-Karim,
P.W.-4-Rahim, P.W.-6-Nazir Ansari, P.W.-7-Md. Aftab Alam
and P.W.-8-Rayeesh Alam have been declared hostile by the
prosecution and expressed their no knowledge about the occurrence.
The attention towards statement recorded under Section 161 Cr.P.C.
of these witnesses have been drawn by prosecution, but due to non-
examination of Investigating Officer in this case, the contradictions
have not been get explained, therefore, the testimony of these
witnesses is fit to be discarded.
The star witness of this case is the informant Md. Anwar Ali
(P.W.-5) . According to his evidence, on 22.04.2007 at about 05:00
A.M., he along with his second wife Sadika Khatoon was ploughing
his field. It is further stated that Md. Mustafa @ Gulam Mustafa is his
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son from first wife and there is dispute about partition of land in
between informant and his son Md. Salim, who was claiming half
share in the landed property. Father-in-law and brother-in-law of Md.
Mustafa were also supporting him in claiming half share in the
property. He has further deposed that on the date of occurrence when
he was ploughing field, Md. Mustafa along with Md. Salim and
Minsar came to the field and said this witness “until you will not give
half share in the land, you will not be allowed to plough the field and
there would be dire consequence” and went away. He has further
stated that about 06:00 – 07:00 A.M., his wife was returning to home
from the field and in the way Salim and Minsar shot her by firearm
and also slitted her neck near village Rajoun in the field of Ali
Mohammad. Hearing the sound of firing, this witness rushed towards
the place of occurrence and saw Salim and Minsar were fleeing away
and villagers were chasing the accused persons and caught hold of
Mustafa along with a firearm. His statement was recorded by police
and he has also proved his signature as Exhibit-2 . This witness further
states that all the three accused persons are still threatening him to
kill.
In his cross-examination also (para-7), this witness reiterates
that at first all the three accused persons came and threatened him on
his field, thereafter returned and when his wife was returning then all
the three accused persons came and committed this occurrence of
murder. He rushed towards the place of occurrence immediately after
hearing the sound of fire. The distance between place of occurrence
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and his field is hardly about 50 yards. He saw all the three accused
persons were fleeing and villagers were chasing them. Mustafa was
caught by villagers with pistol and a knife was also lying at the place
of occurrence, which was seized by police.
Further, cross-examination of this witness was deferred for next
date which concluded on 13.06.2014. On this occasion, the defence
got proved that application of this witness dated 06.06.2007 filed
before the Court of learned C.J.M., Godda, wherein it was mentioned
that Md. Mustafa was not named in the F.I.R. and nothing was
recovered from his possession by the villager rather firearm and knife
were lying at the place of occurrence. This witness has proved his
signature on the above application as Exhibit-A . But, in the same
breath, this witness states that he does not know about the contents of
the said application, but again admits that it was written in the typed
written application that there is no hand of Mustafa in the alleged
occurrence. He has further denied the suggestion of defence that Salim
and Minsar did not came to his house on the date of occurrence and
have been falsely implicated in this case. He also admits that Salim
and Minsar were not apprehended by villagers at the time of fleeing
away. He has also denied the suggestion of defence that due to
previous enmity he has falsely implicated Md. Salim and no such
occurrence took place.
P.W.-2-Md. Faruque is a witness of inquest report of the
deceased and identifies his signature as Exhibit-1 . He has also stated
that the wife of Anwar Ali was murdered, but he does not know who
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have murdered her. On this point he has been declared hostile by
prosecution.
P.W.-9, Dr. Dilip Kumar Choudhary has conducted autopsy
on the dead body of Sadika Khatoon (deceased) and found following
injuries: -
Rigour mortis present in all four limbs.
Anti-mortem injuries: -
(i) Oval lacerated wound on the right side of the middle of
chin, 1½" x 1 ¼" in size. Mark of black powder was present all around
the wound. The margin of wound was found inverted and rugged. The
right half of body of mandible was broken and the blood vessels were
lacerated.
(ii) Oval wound in the supra clavicular area in the right-side
just lateral to the mid-line and of the size 1 ¼" x 1". Powder mark was
found all around the wound in an area of diameter of 5". The margin
of the wound found inverted and rugged.
Both the wounds mentioned above was the wound of entry of a
firearm bullet. The path of bullet traced further the right lung posterior
part of mediastinum and the left dome of diaphragm found pierced.
There was an oval wound on the left side of back of the chest 1" left to
the middle line in the level of inferior angle of scapula. This was the
wound of exit of the firearms bullet and of the size 1 ½ c.m. x 1 c.m.
with everted margin.
(iii) A sharp cut wound on the back of the neck at the level of
rd th
3 and 4 cervical vertebral junction of the size 5" x 1" x 1 ½". The
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muscles of the back of neck found partially cut and the vertebrae were
intact.
(iv) A sharp cut wound 1" below the injury No.(iii) of the size
2" x ¼" x ¼".
Injury Nos. (i) & (ii) were caused by firearm bullet and were
dangerous to life. The injury No.(iii) was also dangerous to life caused
by sharp cutting weapon.
On dissection: -
The skull and vertebrae were normal. Membrane with brain
with spinal cord is normal. On dissection of chest the pleura in the
right side was torn. Right lung lacerated and huge amount of blood
was present in the right chest cavity. All chambers of heart were
empty.
Dissection of abdomen navel intact mouth cavity with some
amount of blood in mouth cavity. The stomach was contained fluid
only and no grain. Intestine was containing faecal matter and gases.
Abdominal viscera were pale. Approx. 30 ml. of urine was there in the
urinary bladder. Genitalia were intact and uterus was empty.
The cause of death in his opinion is above mentioned injuries
leading to shock and haemorrhage and death. The time since death
was about 12 hours.
He has identified the post-mortem report, which is marked as
Exhibit-3 .
P.W.-10-A.S.I., Hariram Pandey has produced the seized
knife in connection with this case, which was found sealed and
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opened before the Court. This knife is fitted with wooden handle
bearing Maalkhana No. 04/07, P.S. Case No. 53/07 and marked as
Material Exhibit-1 .
P.W.-11-Md. Jahangir has admitted his signature on seizure
list, which is marked as Exhibit-4 , but expressed no knowledge about
the occurrence.
15. After closure of prosecution evidence, the statements of accused
persons were recorded under Section 313 of the Cr.P.C., wherein both
the accused persons have denied allegations of committing murder of
the deceased and pleaded their innocence. On the Exhibit-A
application dated 06.06.2007 filed before the Court of C.J.M., Godda
in connection with Meharma P.S. Case No. 53 of 2007 by the
informant, Md. Anwar Ali, but he has only proved his signature
marked as Exhibit-A and Exhibit-B is the certified copy of judgment
st
passed by learned Judicial Magistrate, 1 Class, Godda in G.R. Case
th
No. 394 of 2007 dated 13 March, 2012 (arising out of Meharma
(Belbadda) P.S. Case No. 54 of 2007, dated 22.04.2007 under Section
25 (1-B)(a)/26 of the Arms Act, State versus Md. Mustafa), wherein
the accused has been acquitted extending benefit of doubt from the
aforesaid charges.
16. From the aforesaid discussion of oral testimony of witnesses,
particularly the informant (P.W.-5) and other materials brought on
record. The undisputed fact is that on the date of occurrence at about
05:00 A.M., the deceased along with her husband (P.W.-5) went for
ploughing their field, the appellants along with one Minsar arrived at
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the field at around 6:00 A.M. and forbade the informant from
ploughing the field until he gives half share in the landed property to
the appellant, Md. Mustafa. The deceased (second wife of the
informant) intervened and said that she has three minor children until
they attained the age of majority, property shall not be partitioned,
thereafter, threatening the informant, accused persons returned.
The second phase of occurrence took place at about 07:00
A.M., when the deceased was returning to her home from the field and
reached just at a distance of 50 yards from her field, she was shot and
knife blow was also given on her neck and she fell down on the
ground. It is also proved fact that the appellant No.1, Md. Mustafa @
Gulam Mustafa was caught by villagers, while fleeing with a pistol.
All the three accused persons were seen fleeing from the place of
occurrence just after extending threatening to the informant at his field
for partition of property otherwise be ready to face dire consequences.
The pistol seized from the appellant No.1 was handed over to police
and for which a separate case was lodged under Section 25(1-B)
(a)/26 of the Arms Act against Md. Mustafa. The seizure list of blood
stained soil, blood stained shirt of the accused and knife lying on the
spot was prepared. It is also clear from Exhibit-B that due to lacuna in
the prosecution evidence like non-production of seized material, non-
examination of I.O. and hostility of witnesses, the accused Md.
Mustafa was given the benefit of doubt and acquitted.
17. In the instant case, P.W.-5, who happens to be informant, is not a
hostile witness rather he has fully corroborated his earlier version as
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contained in his fardbeyan recorded by police just after the
occurrence. The factum of enmity is also admitted by the defence and
it is suggested to the witness that due to enmity he has falsely
implicated the accused persons. P.W.-5 is a very natural witness and
cannot be branded as an interested, inimical or partisan witness. His
evidence regarding involvement of appellants in the alleged
occurrence is unrebutted and can’t be doubted about the first phase of
occurrence when accused persons arrived at the field when informant
was ploughing his field along with his second wife (deceased) and
threatening extended by the accused persons and the second phase
also when his wife was returning to home at about 07:00 A.M. and
just after 50 yards from the field, she was shot and sound of firing was
heard by the P.W.-5, who immediately rushed towards the place of
occurrence. The villagers were also chasing the accused persons and
the appellant No.1 was caught red handed with a country made pistol
with empty cartridge. These facts are also relevant under Section 8 of
the Indian Evidence Act as conduct of the accused influenced by the
facts in issue. The knife used in the occurrence was also recovered
from the place of occurrence itself, which finds corroboration from the
P.M. report of the deceased, wherein sharp cut injury on neck has
been found. It is also revealed that both the appellants have acted in
concerted manner under a pre-planned way arriving at the place of
occurrence together and return after extending threat to the informant
and also the second phase of occurrence when deceased was returning
to home, she was killed. There is no other way to conclude about the
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happening of the occurrence caused by any other persons than the
present appellants. We further find that the sole eye-witness of
prosecution, P.W.-5, although, deviated from his earliest version to
some extent, but there is nothing in his evidence to take a different
inference favouring the accused.
18. In our considered view, the cumulative effect of prosecution evidence
in the light of evidence of P.W.-5 finds corroboration from the
evidence of P.W.-9 and leaves no room for doubt to conclude that it is
the appellants, who have committed murder of the deceased and none-
else in the manner as alleged by P.W.-5.
The prosecution has pointed out the defence documentary
evidence Exhibit-A and Exhibit-B, which has no relevancy in the facts
and circumstance of this case inasmuch as the contents of Exhibit-A
has not been proved and fully admitted by the informant (P.W.-5)
except his signature. Exhibit-B is the certified copy of judgment of
acquittal passed in the case under Arms Act against the appellant
No.1, which is not facts in issue in this case or otherwise relevant. The
hostility of most of the witnesses is not within the control of
prosecution. Similarly, non-examination of I.O. in this case cannot be
said to have caused prejudice in any manner to the defence rather it
has seriously prejudiced the prosecution because the earliest version
of most of the hostile witnesses recorded under Section 161 of the
Cr.P.C. has not been got explained by the I.O. due to his non-
examination. Moreover, any lacuna in the prosecution case or lapses
in the investigation cannot furnish any premium to the defence.
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19. In view of above discussion and reasons, we are of the definite view
that the prosecution has been able to prove the charge of murder
against the appellants beyond all reasonable doubt as such, we do not
find any illegality or infirmity in the impugned judgment of
conviction and sentence of the appellants passed by learned Trial
Court and no merits in this appeal, which is fit to be dismissed.
20. Accordingly, this appeal is dismissed .
21. Appellants are in custody. Let a copy of this judgment be furnished
forthwith to the appellants through learned A.P.P.
22. Pending I.A., if any, stands disposed of, accordingly.
23. Let a copy of this judgment along with the Trial Court record be sent
back to the concerned court for information and needful.
(Pradeep Kumar Srivastava, J.)
I Agree
Ananda Sen, J.
(Ananda Sen, J.)
Jharkhand High Court
Dated 06/11/2026
Arpit/ N. A. F. R.
Uploaded on 06/11/2026
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