MD.ARSHAD and ORS vs STATE OF BIHAR
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.706 of 2004
======================================================
Against the judgment of conviction and the order of sentence, dated
13.09.2004, passed, by Shri Brajendra Kumar Srivastava, Additional
Sessions Judge, Fast Track Court No. IV, Nawada, in Sessions Trial No.
139 of 1999/37 of 2004, arising out of Mufassil Police Station Case No. 38
of 1999
=======================================================
1. Md. Arshad
2. Md. Ekbal
3. Md. Rajan @ Feku
4. Irshad @ Naushad
5. Murshid @ Shamim
6. Md. Mahtab
7. Md. Aftab
All are sons of Late Md. Anjay, resident of village Chamardiha,
Police Station Nawadah Mufassil, District Nawadah
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Anil Singh
Mr. Deepak Kumar
Mr. Tarun Kumar
Ms. Parishmita Bora
Mr. Amrit Anumay
For the State : Mr. Sujit Kumar Singh
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
and
HONOURABLE MR. JUSTICE ALOK KUMAR
JUDGMENT AND ORDER
C.A.V.
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)
Date : 01-09-2026
The present appeal has been preferred against the
judgment of conviction and the order of sentence, dated
13.09.2004, passed by learned Additional Sessions Judge, Fast
Track Court No. IV, Nawada, in Sessions Trial No. 139 of 1999/37
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of 2004, arising out of Mufassil Police Station Case No. 38 of
1999, whereby the appellants were convicted for the offences
punishable under Sections 302 read with Section 149 of the Indian
Penal Code. Pursuant to their conviction, the appellants were
sentenced to undergo rigorous imprisonment for life, and a fine of
Rs. 5000/- each, and in default of payment of fine, the appellants
were further directed to undergo simple imprisonment for one
year.
2. The entire occurrence took place in two part. In the
first part, the informant (PW 10) disclosed that on 02.05.1999, at
about 3 PM, his co-villager, Md. Rajan @ Feku, came at the door
of his brother, Md. Nehal, and started abusing and on hearing the
abuses, his brother, Md. Nehal, came out of the house and
prevented Md. Rajan from abusing, whereupon scuffle took place
between them. On hearing hulla, Md. Arshad (having a knife in his
hand), Md. Iqbal (having a sword in his hand) and Md. Aftab
(having a lathi in his hand), came near the house of Md. Nehal and
started assaulting him. Thereafter, the informant pacified the
quarrel and locked his brother inside the house, upon which, the
accused persons started damaging the tiled roof (khaprail) of the
house of Md. Nehal.
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3. In the second part, the informant revealed that his
brother, Md. Nehal, came out of the house and went towards the
police station to lodge a case, who was followed by the informant
PW 10) and his mother (PW 4). When they reached near the
southern side of village Jagi Chak, he saw Md. Rajan @ Feku,
armed with a lathi, Md. Arshad, armed with a dagger, Md. Iqbal,
armed with a sword, Md. Aftab, armed with a lathi in his hand,
Md. Mehtab, armed with a bhala, Md. Murshid @ Shamim, armed
with a saif (a double edged sharp cutting weapon), and Md. Irshad,
armed with a knife, chased his brother, Md. Nehal.
4. According to the informant, Mf. Aftab and Md. Rajan
caught hold his brother and both of them exhorted others to kill
him, upon which, Md. Arshad gave a knife blow upon the head of
Md. Nehal, Md. Murshid inflicted a saif blow on the right eye of
Md. Nehal, Md. Iqbal inflicted a sword blow on the head of Md.
Nehal, due to which his brother, Md. Nehal, sustained injuries and
fell on the ground. Md. Mehtab and Md. Irshad also assaulted Md.
Nehal by means of bhala and knife.
5. The informant further disclosed that when his mother,
Taiba Khatoon (PW 4), tried to rescue Md. Nehal, Md. Aftab and
Md. Rajan assaulted her by lathis. With the help of other persons,
the informant took Md. Nehal to Sadar Hospital, Nawada, for
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treatment, where, during the treatment, he succumbed to the
injuries.
6. The informant further stated that the occurrence was
witnessed by Ameen Miya, Mohammed Najmi, Mohammed
Naseem, Mohammed Bihari of his village, Bundi Chaudhary of
village Jagi Chak, and other persons. He further stated that the
accused persons had also assaulted Md. Najmi, when he attempted
to rescue Md. Nehal.
7. On the basis of the aforesaid written report, Mufassil
Police Station Case No. 38 of 1999, dated 02.05.1999, was
registered against the accused persons for the offences punishable
under Sections 147/148/149/323/324/302 of the Indian Penal
Code.
8. Upon completion of the investigation, charge sheet
no. 50 of 1999 was submitted by the police on 26.06.1999 against
the appellant under Sections 147/148/149/323/324/302 of the
Indian Penal Code. Thereafter, on 05.07.1999, cognizance of the
offences was taken by the learned Chief Judicial Magistrate and on
28.07.1999, the case record was transmitted to the Court of
Sessions.
9. On 27.08.1999, the learned Trial Court framed
charges against the appellants under Sections 302 read with
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Section 149 of the Indian Penal Code. The charges were read over
and explained to the appellants, to which they pleaded not guilty
and claimed to be tried.
10. The prosecution, in order to substantiate its case, has
examined twelve witnesses and exhibited some documents on its
behalf. List of prosecution witnesses and exhibits are being
mentioned hereunder in tabular form:-
List of Prosecution Witnesses :
Prosecution
Name of witness Description
witness no.
Eye-witness to the first
part of the occurrence;
whereas, hearsay to the
second part of the
occurrence
2. Md. Nasim Hostile
1. Bihari Mian
Eye-witness to the first
part of the occurrence;
whereas, hearsay to the
second part of the
occurrence
3. Md. Kudus
Mother of the deceased
and eye-witness to the
entire occurrence
4. Taiba
Injured and eye-
witness to the entire
occurrence
6. Bundi Choudhary Hostile
5. Md. Najme
Wife of the deceased,
Eye-witness to the first
part of the occurrence;
whereas, hearsay to the
second part of the
occurrence
7. Jinat Khatoon
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Doctor, who conducted
post mortem
examination
8. Dr. Bimal Prasad Singh
Doctor, who examined
9. Dr. Arvind Kumar
injured (PW 5)
Informant and brother
10. Md. Kamal
of the deceased
11. Jai Prakash Narayan Investigating Officer
12. Sanjeev Kumar Formal witness
List of Exhibits on behalf of the prosecution :
Description of the
Exhibit No.
Date/attested by
Exhibit
Signature of Md. Kudus
1 08.02.2000 (PW 3)
on inquest report
2 Post mortem report 05.02.2001 (PW 8)
3 Injury report 29.03.2001 (PW 9)
4 Inquest report 19.02.2001 (PW 11)
5 Fardbayan 05.06.1995 (PW 12)
Formal First Information
6 19.02.2001 (PW 11)
Report
Signature of informant
7 25.07.2002 (PW 12)
on the protest petition
11. The defence has also examined one formal witness,
namely, Baleshwar Prasad Yadav (DW 1), who has proved the
handwriting and signature of Sanatan Tuddu, A. S. I., which has
been marked as Exhibit A.
12. After closure of the prosecution evidence, the
statement of the appellants were recorded under Section 313 of the
Code of Criminal Procedure on 25.11.2002, in which the
appellants denied all incriminating circumstances appearing
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against him in the prosecution evidence and claimed their
innocence.
13. Learned Counsel for the appellants, at the very outset,
submitted that the judgment of conviction is against the weight of
evidence and has been rendered on mere presumption of guilt. It is
contended that the prosecution has failed to prove its case beyond
reasonable doubt inasmuch as the testimonies of the prosecution
witnesses suffer from material contradictions and inconsistencies
inasmuch as the learned Trial Court failed to properly appreciate the
evidence available on record and recorded the conviction without
considering the material circumstances emerging from the prosecution
evidence itself.
14. Learned Counsel further submits that the prosecution
has failed to establish the place of occurrence by cogent, consistent and
reliable evidence. It is submitted that though the prosecution alleges
that the occurrence had taken place at the place in question, the
Investigating Officer did not find any blood or any other incriminating
material at the alleged place of occurrence and, significantly, no seizure
was made. It is further contended that the medical evidence does not
support the prosecution case with regard to the time and place of
occurrence and thus, creates a serious doubt in respect thereof. In the
absence of any objective or scientific material corroborating the alleged
place of occurrence, coupled with the inconsistency between the ocular
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and medical evidence, the prosecution has failed to establish the place
as well as the manner of occurrence beyond all reasonable doubt.
15. It is next submitted that the prosecution witnesses have
given materially divergent versions with regard to the manner and
sequence of the occurrence and the evidence on record indicates
existence of two separate occurrences. Learned Counsel contends that
the first occurrence, which goes to the root of the prosecution case and
constitutes the genesis of the subsequent occurrence, has deliberately
been suppressed and has not been brought before the learned trial Court
in its true perspective. It is urged that the earliest version of the
occurrence has thus been withheld and, in its place, an improved and
subsequent version has been projected before the Court. Learned
Counsel further submits that even during examination of the appellants
under Section 313 of the Code of Criminal Procedure, no specific
question was put to them with regard to the first occurrence or the
material circumstances arising therefrom. It is, therefore, contended
that the appellants were denied a fair and effective opportunity to
explain the circumstances sought to be used against them and the
prosecution cannot derive advantage from such circumstances which
were never specifically put to the appellants.
16. It is further contended that the genesis of the occurrence
has not been established by the prosecution. The Investigating Officer,
who has admitted that the tiles at the alleged place of occurrence were
found broken; however, despite noticing the same, the Investigating
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Officer did not seized the broken tiles, the failure of the investigating
agency to collect and preserve such material evidence, when considered
along with the suppression of the first occurrence, the material
contradictions in the testimony of the prosecution witnesses and the
complete absence of blood or any other incriminating material at the
alleged place of occurrence, renders the prosecution version highly
doubtful. It is thus urged that the prosecution has failed to place before
the Court the true genesis of the occurrence and has withheld material
circumstances which were essential for proper adjudication of the case.
17. Lastly, learned Counsel submits that the investigation
suffers from serious lapses and non-compliance with the applicable
provisions of the Bihar Police Manual, including Rule 116-A, causing
serious prejudice to the appellants.
18. In view of the aforesaid facts and circumstances, it is
submitted that the impugned judgment of conviction is fit to be set
aside as the prosecution has miserably failed to prove its case beyond
reasonable doubts, and on this basis, the appellants are entitled to be
given at least benefit of doubt.
19. In support of his arguments, leaned Counsel placed
reliance upon the decisions of the Supreme Court, in the cases of
Dilawar Hussain and Others v. State of Gujarat and Another (AIR
1991 SC 56) , Sharad Briduchand Sarda v. State of Maharashtra ,
reported in 1984 (4) SCC 116.
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20. Per contra, learned Additional Public Prosecutor
submitted that the judgment of conviction and order of sentence under
challenge require no interference as the prosecution has been able to
prove the case beyond all reasonable doubts. It has been submitted that
the prosecution witnesses have remained consistent in the testimony
during the course of trial and there does not remain any lacuna in the
case of the prosecution. The minor inconsistencies in the testimony of
the witnesses cannot be a ground to reject their evidence as a whole.
21. It is further submitted that the testimony of the
witnesses stands corroborated in material particulars by the prosecution
evidence and the offences alleged against the appellant appears to be
serious in nature inasmuch as the prosecution witnesses examined have
duly supported its case.
22. Learned Additional Public Prosecutor finally argued that
guilt of the appellant has been satisfactorily proved by the evidence
adduced during the course of trial and there is no infirmity in the
judgment of conviction of the learned trial Court.
23. While considering the present appeal, I would like
to re-appreciate the ocular witnesses adduced on behalf of the
prosecution.
24. Out of the 12 witnesses examined by the
prosecution, PW 4 Taiba (mother of the deceased), PW 5 Md.
Najme one of the injured and niece of the deceased) and PW 10
(informant of this case and brother of the deceased) are the ones,
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who have supported the case of the prosecution by implicating the
appellants aforementioned in the alleged killing of Md. Nehal.
25 . As far as PW 2 (Md. Nasim) and PW 6 (Bundi
Chaudhary) are concerned, they were declared hostile and nothing
could be, admittedly, elicited from their cross-examination by the
prosecution, which could be said to have supported the case of the
prosecution.
26 . As far as PW 1 (Bihari Miyan), PW 3 (Md. Kudus)
and PW 7 (Jinat Khatoon) are concerned, their evidence were,
admittedly, nothing, but hearsay to the alleged killing of Md.
Nehal and have to be, therefore, kept excluded from the purview
of this Court’s consideration.
27. As regards PW 12 (Sanjeev Kumar), he is a formal
witness, who has proved the signature of the informant on the
protest petition.
28. So far as PW 8 (Dr. Bimal Prasad Singh) is
concerned, he is the doctor who had conducted post mortem
examination on the dead body of Md. Nehal. PW 9 (Dr. Arvind
Kumar) is the doctor, who had examined the injured Md. Najme
(PW 5) and PW11 Jai Prakash Narayan is the Investigating Officer
of this case.
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29. While considering the present appeal, it needs to be
noted that PWs 4, 5 and 10, who have claimed to be eyewitnesses,
are all related to the deceased. Merely because of the fact that
witnesses are related to each other, their relationship with the
deceased cannot by itself make their evidence unreliable.
Nonetheless, since the witnesses were related to each other, their
evidence ought to have been scrutinized with far greater degree of
care than what is, ordinarily, done.
30. The mere relationship is not and cannot be a ground
to reject the testimony of the eyewitnesses, the fact remains that
the admitted evidence on record shows that around the second
place of occurrence, many other independent persons were present
and though none of them might have seen the genesis of the
occurrence or the alleged assault on victims, it is curious to note
that none of independent witnesses has been examined to show
that an occurrence of assault had taken place and that the deceased
had succumbed to the injuries at the place of occurrence and/or
that the witness, who had claimed to have sustained injuries, were
found injured at the place of occurrence.
31. In the backdrop of the fact that the eyewitnesses’
account of occurrence, given in the present case, does not get
support from any independent evidence, it was incumbent, on the
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part of the learned trial Court, to scrutinize the evidence on record
with greater degree of care and not to rely on their evidence
merely because they have corroborated the testimony of each
other. Contrary to this principle of law as regards the appreciation
of evidence by the eye-witnesses, who corroborate each other, the
learned trial Court has proceeded to rely on the evidence of the
eyewitnesses on the ground that they have all corroborated each
other’s evidence.
32. It is trite that it is not the number of witnesses,
which shall determine the outcome of a trial; rather, it is the
quality of their evidence, which shall determine the guilt or
otherwise of an accused facing trial.
33. In the present case, therefore, it is the duty of this
Court, as the Court of appeal, to meticulously examine the
evidence on record to ensure that the prosecution witnesses have
not given evidence implicating a person, who might have been
innocent or implicating an innocent with some guilty ones.
34. Bearing in mind what has been indicated above, I
come to the evidence of PW 8 (Dr. Bimal Prasad Singh) is the
doctor and had conducted post-mortem examination on the dead
body of deceased Mohammad Nehal. In his examination-in-chief,
he deposed that at the time of the post-mortem, the deceased was
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of thick build, rigor mortis was present all over the body and there
was no sign of decomposition.
35. On examination, PW 8 found the following ante-
mortem injuries on the body of the deceased:
“Exterior injuries:
(i) Incised wound measuring 3” × ½” x bone
deep bone cut at the vertex;
(ii) Generalized swelling whole right side of
face and right side of scalp;
(iii) Lacerated wound measuring 1” × ¼” ×
¼” in the left intra-orbital region;
(iv) Swelling 4” × 3” at right arm;
(v) Lacerated wound 2 inches × ½ inch × ½
inch at right elbow;
(vi) Abrasions at abdomen, chest, left hand
and left forearm; and
(vii) Lacerated wound 1 inch × ½ inch × ¼
inch at left great toe.
On dissection:-
“(i) a haematoma on the right side of the
scalp,
(ii) outer table of left parietal bone cut,
(iii) intracranial haematoma seen all around
the brain matter generalized:
(iv) All other viscera intact and congested;
(v) Stomach contained 40 ounces of liquid,
(vi) Heart was full, and
(vii) Urinary bladder was empty.”
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36. This witness (PW 8) has opined the time elapsed
since death between six and thirty-six hours and has also opined
about the cause of death to be shock due to injury to scalp (vertex)
by sharp object, causing intracranial haematoma. He further
deposed that injury no. (i) was possible by chhura. This witness
has further opined that the injuries found on the body of the
deceased were sufficient, in ordinary course of nature, to cause
death.
37. In cross-examination, this witness (PW 8) had
deposed that during the summer season, rigor mortis starts just
after two hours after death, and after six hours in summer season,
rigor mortis is completed and start vanishing in 24 hours in
summer season. He further deposed that the death may have been
caused within 24 to 36 hours.
38. This witness (PW 8) had further deposed that chura
is pointed as well as sharp cutting weapon and churra blows do
not always cut penetrating wound. He further pointed out that
injury no. (ii) is not the effect of injury no. (i). This witness (PW
8) had further admitted that he had not mentioned the angle of
injury no. (i) and he examined the injury by naked eye. He further
deposed that the injury nos. (iii) to (ix) may be possible by fall
and injury no. (i) may be caused by heavy lethal weapon as well
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as small weapon. He further deposed that injury no. (i) is not
possible by sharp edged stone.
39. This witness (PW 8) further denied the suggestion
that injury no. (i) is not possible by chhura (knife).
40. So far as PW-9 (Dr. Arvind Kumar) is concerned, he
is the doctor who medically examined the injured Md. Nazme
(PW5). In his examination-in-chief, he deposed that on
examination, he found the following injuries on the person of Md.
Nazme (PW 5) :-
“(i) Lacerated wound of size ½ inch × ¼
inch × ¼ inch on the left side of forehead;
(ii) Lacerated wound of size ½ inch × ¼
inch × ¼ inch over the left parietal eminence; and
(iii) swelling (diffused) on right shoulder.”
41. This witness (PW 9) had opined that all the injuries
were simple in nature, caused by hard and blunt substance, and
were within six hours of examination.
42. In cross-examination, this witness (PW 9) had
deposed that lathi blow may cause ecomosis, when lathi blow is
given, it may not cause blood clotting always. He further deposed
that simple injury may be manufactured if the person concerned is
ready to bear the pain.
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43. Now, coming to the other alleged eye-witnesses to
the occurrence.
44. PW 4 (Taiba) is the mother of the deceased and she
claimed to be an eyewitness to the first and second part of the
occurrence. In her examination-in-chief, she deposed that Aftab,
Mehtab, Rajan, Iqbal, Arshad, Irshad and Murshid came to her
house and started abusing. Thereafter they damaged the tiled roof
of the house. She further deposed that when she and her deceased
son, Nehal, were going to the police station for lodging a case, and
reached near the Aahar at Jaggi Chowk, all the seven accused
persons caught Nehal and Arshad assaulted him with a knife on
his head, Iqbal struck him with a sword, Mehtab assaulted him
with a bhala , due to which the deceased fell down and thereafter
Murshid assaulted him with a saif , due to which the deceased
sustained injury in his eye. Rajan and Aftab assaulted Nehal with
lathis . According to this witness (PW 4), all the accused persons
jointly assaulted Nehal, who succumbed to his injuries while
being taken to the hospital. This witness (PW 4) was also
assaulted by lathis. Najme was also being assaulted with sword by
Iqbal and by means of lathi by Rajan.
45. In her cross-examination, PW 4 had deposed that no
assault had taken place at the house of the deceased; rather, only
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scuffle took place there. This witness (PW 4) denied that she had
stated before the police that the accused persons were armed with
swords, knife etc., and Nehal was assaulted at the house or that
Nehal was going to the police station to lodge a case after the
occurrence of mar-pit. This witness (PW 4) had deposed that she
disclosed before the Police that Arshad assaulted Nehal in the
head with a knife, Iqbal assaulted him with a sword, Mehtab
assaulted him with a spear ( bhala ), Murshid assaulted him with a
saif and Rajan and Mehtab assaulted him with lathis .
46. To the court question, this witness (PW 4) had
answered that she did not undergo any medical treatment for her
injury as she was overwhelmed by the grief caused by the death of
her son, but Najme got his treatment done. To another question,
this witness (PW 4) answered that Najme was assaulted by sword
only, due to which he sustained a cut injury, which was stitched.
This witness (PW 4) further deposed that three persons assaulted
Najme and Rajan and Mehtab assaulted him with lathis.
47. This witness (PW 4) further deposed that blood had
fallen at Jaggi Chowk and that both Nehal and Najme had bled at
the same place. According to her, the Police seized the blood-
stained clothes of the deceased and soil from the place of
occurrence.
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48. This witness (PW 4) denied the suggestion that the
enemies had killed her son and threw his dead body and the
convicts had been falsely implicated. She also denied that the
convicts were innocent.
49. PW 5 (Md. Najme), in his examination-in-chief, had
deposed that on 02.05.1999 at about 3 PM, while he was in his
house, on hearing noise, he reached near the house of Nehal and
saw seven accused persons, Md. Iqbal was armed with a sword,
Md. Arshad and Md. Irshad were carrying a knives, Md. Aftab
was having a lathi, Md. Mehtab was having a bhala and Md.
Murshid was armed with a saif and they were abusing Nehal. This
witnes pacified the matter and put Nehal inside the house.
Thereafter, the accused persons started damaging the tiled roof
( khapra ) of the house of Nehal, upon which Nehal, along with this
witness, his mother and one Md. Kamal went to the police station
to lodge a case and when they reached near Jaggi chak chak, this
witness found that accused persons were already present there
from before.
50. This witness (PW 5) further deposed that Rajan and
Aftab caught Nehal, Md. Arshad assaulted Nehal in his head with
knife and other persons also assaulted Nehal with the weapons
they were carrying. This witness (PW 5) further deposed that
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Bundi Choudhary and Ashok Choudhary also reached there. When
this witness along with the mother of Nehal went to rescue, Iqbal
assaulted this witness by sword in his head, Aftab assaulted him
by means of lathi in his shoulder and Rajan assaulted him by
means of lathi on his head.
51. In his cross-examination, PW 5 admitted that the
deceased was his uncle and he was not an accused in any criminal
case and specifically denied that he was an accused in a case for
firing at the Police or that any case was pending against him in
connection with the alleged loot in the house of Bundel
Choudhary. He further deposed that he had no dispute with
anyone.
52. PW-5 further deposed that he had noticed twelve to
thirteen injuries on the body of Nehal Miyan. According to him,
there were two knife injuries on the head, one sword injury on the
head, one saif injury on the right side, one injury in the middle of
the head and one on the left side. He, however, admitted that he
could not depose the exact place where the saif injury had been
inflicted. He further stated that Nehal was struck once near the eye
but could not specify the exact number of spear blows. According
to him, the deceased was also struck with a spear on the elbow. He
was unable to state the number of lathi blows or the specific parts
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of the body where such blows were inflicted, though he stated that
lathi blows were inflicted on the chest and stomach and that there
were injury marks on the face.
53. PW 5 further admitted that he was standing close to
Nehal and was attempting to protect him during the assault. He
denied the suggestion that he had not stated before the police that,
out of fear of the accused persons, he had remained hidden in the
village and had come out only after the accused had fled. He
maintained that he had stated before the police that Bundi
Choudhary and Ashok Choudhary had come to rescue the
deceased and that Taiba Khatoon had also been assaulted while
attempting to save her son. He further deposed that Jaggi Chowk
was a locality where about 50 to 60 persons of the village reside,
but no one came.
54. PW-5 further deposed that he too had sustained
injuries while attempting to save Nehal Miyan. According to him,
blood from the body of the deceased had fallen at the place of
occurrence and a few drops of his own blood had also fallen there.
He stated that the blood of the deceased had spread within an area
of about one and a half yards. He further deposed that at the time
of the occurrence, Nehal was not wearing a shirt and was dressed
only in a lungi and gamcha. Although he could not say whether
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the lungi and gamcha were soaked with blood, he stated that some
blood had fallen on his own ganji, which he had shown to the
Police. This witness further deposed that he had sustained injuries
on both his eyebrows but could not say as to who had caused
those injuries near his eyes.
55. PW-5 denied the suggestion that Nehal had several
enemies and that some unknown persons had killed him and
thrown his body and the present accused persons had been falsely
implicated. He also denied the suggestion that being the nephew
of the deceased, he was deposing falsely out of animosity against
the accused persons.
56. PW-10 (Mohammad Kamal) is the informant of the
case and the brother of the deceased. In his examination-in-chief,
he deposed that while he was present in the house of his brother,
Nehal. According to him, accused Md. Rajan, came there with a
lathi and started abusing Nehal. When Nehal objected, Md. Aftab,
armed with a lathi , Md. Iqbal, armed with a sword, Md. Arshad,
armed with a knife, Md. Irshad, with a knife, Md. Murshid @
Shamim, with a saif , and Md. Mehtab, with a bhala , arrived there.
According to this witness, all the aforesaid seven persons jointly
assaulted Nehal by fists and slaps. This witness further deposed
that he and other persons present rescued Nehal and took him
Patna High Court CR. APP (DB) No.706 of 2004 dt.01-09-2026
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inside the house. Thereafter, the accused persons started damaging
the tiled roof ( khapra ) of the house. According to him, Nehal
Miyan then stated that the accused persons would not listen and
that they should go to the police station to lodge a case.
Thereafter, the informant, his mother and Nehal set out for the
police station.
57. This witness (PW 10) further deposed that when
they reached near Jaggi Chak, all the seven accused persons came
running from behind and Rajan and Aftab caught Nehal and
exhorted to kill him, upon which Md. Arshad gave a knife blow on
the head of Nehal, Iqbal gave a sword blow on the head of Neha,
Murshid gave a saif blow on the right eye of Nehal, Aftab and
Rajan thereafter assaulted Nehal by means of lathis , Mehtab
assaulted him with a bhala , which hit the left toe of the deceased,
and Irshad assaulted him with a knife, causing injury to his right
elbow. This witness (PW 10) further deposed that when his
mother (PW 4) attempted to save Nehal, Aftab and Rajan
assaulted her with two lathi blows. He further stated that when
Nazme (PW 5) came to save the deceased, Iqbal assaulted him on
his head with a sword.
58. In his cross-examination, this witness (PW 10)
further deposed that at the time of the initial occurrence inside the
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house, only he, his mother, Mohammad Nazim and Jinat Khatoon
were present, while the children were not in the house. He
admitted that he could not say whether the members of those
neighbouring houses were present at the relevant time. This
witness (PW 10) had deposed that Rajan started abusing Nehal in
the afternoon but he did not remember the exact words used.
According to him, Naseem, Bihari Miyan and Md. Kudus had
reached the place even before Nehal came out of the house. He
stated that he came out along with Nehal.
59. PW-10 further deposed that all the seven accused
persons remained outside the house and did not enter inside.
According to him, Rajan and Aftab started damaging the tiled roof
( khapra ) while the remaining accused stood there. The tiled roof
was broken with lathis and about 50 to 60 tiles fell into the
verandah. He further deposed that none of the accused stopped
them at the entrance of the house and they all walked towards
Jaggi Chowk situated to the west, while the accused persons
followed behind them.
60. PW-10 further deposed that the knife blow landed
in the middle of the forehead and blood immediately started
oozing out of the head of the deceased. He further stated that
thereafter both Iqbal and Arshad assaulted Nehal and, after those
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blows, he fell down. According to him, Iqbal struck the deceased
with a sword causing a cut about one finger deep in the middle of
the head. He further deposed that blood was oozing out of head,
right elbow and right eye of the deceased and there were injuries
all over his body. According to this witness, Bundi Choudhary and
Ashok Choudhary arrived only after the assault had been
completed and no other person came there.
61. PW-10 denied the defence suggestion that accused
Aftab's right arm was permanently disabled. He stated that
although Aftab had earlier sustained a fracture while working as a
truck cleaner/helper, the injury had healed. He further stated that
the wife of the deceased had not remarried. Finally, he denied the
defence suggestion that Nehal was a man of criminal antecedents
who had been killed elsewhere and the present accused persons
had been falsely implicated. He also denied that he was deposing
falsely.
62. PW-11 (Jai Prakash Narayan) is the Investigating
Officer of the case. In his examination-in-chief, he deposed that
on 02.05.1999, while posted as a Sub-Inspector at Mufassil Police
Station, Nawada, at about 4:35 PM, he received an information
that a person had died in the Sadar Hospital, Nawada. Upon
receiving the said information, he proceeded to the Sadar
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Hospital, Nawada. Upon reaching the hospital, he recorded the
fardbeyan of the informant, Md. Kamal (PW-10). He further
deposed that during investigation, he recorded the statements of
the informant, Md. Nazme (PW-5) and other witnesses. He further
deposed that he prepared the inquest report, put his signature over
the report and also obtained the signatures of the witnesses
Amiruddin and Mohammad Kudus. He inspected the first place of
occurrence and found that the front portion of the tiled roof
( khapra/chhappar ) of the house of the deceased had been broken.
He also inspected the second place of occurrence.
63. PW 11 further deposed that witness Md. Nazme
(PW 5) had made a statement before him on 25.09.1999 to the
effect that, upon hearing noise while he was at his house, he went
near the house of Md. Nehal and found a quarrel taking place
between Nehal and accused Md. Rajan, Md. Arshad, Md. Iqbal,
Md. Aftab, Md. Shamim and Md. Irshad, who were armed with
lathis . According to the witness's statement, he thereafter learnt
that Md. Rajan and his brothers had assaulted and injured Nehal,
who subsequently died in the hospital. He further deposed that he
did not seize any broken tiles.
64. While considering the present appeal, it needs to be
noted that PW 4 Taiba, PW 5 Md. Najme and PW 10 Md. Kamal
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are the witnesses, who have supported the prosecution case and
have implicated the appellants in the alleged killing of Md. Nehal.
PW 4 is the mother of the deceased, PW 5 is his nephew and an
alleged injured eyewitness and PW 10 is the informant and brother
of the deceased. Thus, all these three witnesses relied upon by the
prosecution are closely related to the deceased. Merely because
the witnesses are related to the deceased, their evidence cannot, by
that reason alone, be discarded. At the same time, their evidence
has to be scrutinized with greater care and caution, particularly
when the occurrence, as narrated by them, does not receive
adequate support from the independent or medical evidence on
record.
65. It is also required to be kept in mind that the
evidence of PW 4, PW 5 and PW 10 is not required to be
examined merely from the standpoint of whether they have
supported one another. The question is whether their evidence,
when tested against the medical evidence and the evidence of the
Investigating Officer, inspires confidence and establishes the
participation of each of the accused beyond reasonable doubt. It is
the quality of evidence and not the number of witnesses which
determines whether the prosecution has succeeded in proving its
case.
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66. Coming first to the medical evidence, PW 8, Dr.
Bimal Prasad Singh, who conducted the post-mortem examination
on the dead body of Md. Nehal, found seven external injuries.
Injury no. (i) was an incised wound, measuring 3" × ½" × bone
deep with cut bone at the vertex. Injury no. (ii) was generalized
swelling over the right side of the face and scalp. Injury no. (iii)
was a lacerated wound in the left intra-orbital region. Injury no.
(iv) was swelling over the right arm. Injury no. (v) was a lacerated
wound at the right elbow. Injury no. (vi) consisted of abrasions
over the abdomen, chest, left hand and left forearm, while injury
no. (vii) was a lacerated wound at the left great toe. On dissection,
there was haematoma on the right side of the scalp, the outer table
of the left parietal bone was cut and intracranial haematoma was
found around the brain matter. The doctor opined that the cause of
death was shock due to injury to the scalp at the vertex by a sharp
object causing intracranial haematoma.
67. The medical evidence, therefore, establishes that
Md. Nehal had suffered a fatal injury on the vertex by a sharp
object. However, the medical evidence has to be examined in the
light of the specific ocular version given by PW 4, PW 5 and PW
10, because these witnesses have not merely alleged a general
Patna High Court CR. APP (DB) No.706 of 2004 dt.01-09-2026
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assault but have attributed specific weapons and specific blows to
different accused persons.
68. PW 4, in her evidence, attributed a knife blow on
the head to Arshad, a sword blow to Iqbal, a spear blow to
Mehtab, an assault with saif by Murshid and lathi blows by Rajan
and Aftab. Thus, according to her, the deceased was subjected to
assaults by several sharp-edged and blunt weapons. PW 10 has
given substantially the same account and has attributed a knife
blow to Arshad, a sword blow to Iqbal, a saif blow near the right
eye, lathi blows by Rajan and Aftab, a bhala blow by Mehtab and
a knife blow by Irshad on the right elbow.
69. If the description of the occurrence given by PW 4
and PW 10 is to be accepted in its entirety, one would expect the
injuries found on the person of the deceased to correspond, at least
in their broad nature, with the several sharp-edged weapons
alleged to have been used, but the post-mortem examination does
not disclose such a corresponding pattern of injuries. Apart from
the incised wound at the vertex, the other injuries are described as
lacerated wounds, swelling and abrasions. There is no punctured
wound corresponding to the alleged bhala blow. There is also no
second incised wound on the head corresponding to the separate
Patna High Court CR. APP (DB) No.706 of 2004 dt.01-09-2026
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knife and sword blows, which PW 10 specifically attributes to
Arshad and Iqbal.
70. This aspect assumes greater importance when the
evidence of the doctor is considered. PW-8, in cross-examination,
has admitted that he had not mentioned the angle of injury no. (i),
that the injury had been examined by him by naked eye and that
injury no. (i) could be caused by a heavy lethal weapon as well as
a small weapon. He further deposed that injury nos. (iii) to (ix)
might be possible by fall. He also stated that injury no. (ii),
namely swelling over the right side of the face and scalp, was not
the effect of injury no. (i).
71. The evidence of the doctor (PW 8), therefore, does
not corroborate the detailed attribution made by PW 4 and PW 10
as to the particular weapon used by each accused. The fatal injury
is certainly compatible with an assault by a sharp weapon, but the
medical evidence does not establish that the deceased had
received the several distinct sharp weapon blows spoken of by the
eyewitnesses. The absence of a corresponding punctured injury to
support the alleged bhala assault and the absence of multiple
incised wounds corresponding to the several alleged knife and
sword blows cannot be overlooked.
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72. The Supreme Court, in the case of Mahavir Singh
v. State of Madhya Pradesh , reported in (2016) 10 SCC 220 ,
has held that where medical evidence completely rules out the
ocular version, the ocular evidence may be disbelieved.
73. PW-5, who claims to be an injured eyewitness, also
gives description, which does not satisfactorily correspond with
the medical evidence. He deposed that he had seen two knife
injuries on the head of Nehal, one sword injury on the head, a saif
injury near the right side of the eye, a spear injury on the elbow
and other injuries caused by lathis. He further deposed that there
was extensive bleeding and injuries had been caused all over the
body. However, as discussed above, the post-mortem report
records only one incised wound at the vertex, one lacerated wound
in the left intra-orbital region, one lacerated wound at the right
elbow, swelling and abrasions. The medical evidence, therefore,
does not disclose the number and nature of injuries which would
ordinarily be expected if the occurrence had taken place in the
manner described by PW 5.
74. The discrepancy becomes still more significant
when the ocular account is tested against the evidence of PW 11,
the Investigating Officer. PW 10 deposed that immediately after
the knife and sword blows, blood started oozing out of the head of
Patna High Court CR. APP (DB) No.706 of 2004 dt.01-09-2026
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Nehal and blood was also oozing out of his head, right elbow and
right eye and there were injuries all over his body. PW 5 also
deposed that blood of the deceased had fallen at the place of
occurrence. However, PW-11 categorically deposed in cross-
examination that he found no mark of the occurrence at the second
place of occurrence, inasmuch as the ground was dry and he did
not find any blood near the second place of occurrence.
75. The aforesaid circumstance cannot be brushed aside
as a mere omission in investigation. The prosecution witnesses
describe a violent assault upon the head and other parts of the
body by knives, sword, saif , bhala and lathis and specifically
speak of blood oozing out from the injuries and falling at the place
of occurrence. Yet the Investigating Officer, who inspected the
alleged second place of occurrence, found the ground dry and no
blood whatsoever. The absence of such physical evidence, in the
facts of the present case, creates a serious doubt regarding the
manner and place of the alleged assault.
76. Close on the heels of the evidence of the
prosecution witnesses regarding the drain dispute, the evidence of
PW 11 becomes significant. The prosecution witnesses have
referred to the dispute between the parties relating to the drain for
a long time as the background of the occurrence, yet, the
Patna High Court CR. APP (DB) No.706 of 2004 dt.01-09-2026
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Investigating Officer candidly admitted that he did not investigate
the said dispute. Thus, the very genesis of the occurrence, as
projected by the prosecution witnesses, remained wholly
unattended. Had the alleged drain dispute been the real cause of
the occurrence, some objective material regarding the existence,
location and physical features of the drain and its proximity to the
houses of the parties ought to have emerged during investigation.
The complete absence of such investigation, therefore, assumes
significance and lends further uncertainty to the prosecution
version regarding the genesis and manner of the occurrence.
77. The evidence of PW 11 regarding the movements of
the accused persons during investigation also creates a further
circumstance requiring consideration. PW 11 deposed that some
witnesses had stated during investigation that while proceeding on
the path, the accused persons were empty-handed. He further
stated that it had come to light during investigation that the
accused persons went towards America Bigha after the alleged
assault and that the assault had taken place between Jakki Chak
and America Bigha, which was about half a kilometre from the
place of occurrence. This circumstance does not fit neatly with the
detailed version of the eyewitnesses regarding the accused persons
Patna High Court CR. APP (DB) No.706 of 2004 dt.01-09-2026
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pursuing the deceased and continuously assaulting him with
different weapons.
78. In the present case, the eyewitness account does not
receive the necessary independent corroboration from the physical
evidence collected at the place of occurrence. The position
becomes more serious because the Investigating Officer himself
found no blood at the alleged second place of occurrence.
79. The evidence of PW 5, though projected as that of
an injured witness, does not by itself remove the doubt. The doctor
found only three simple injuries on this person, i.e. two small
lacerated wounds on the forehead and parietal eminence and
swelling over the shoulder, all caused by hard and blunt substance.
It is the consistent deposition of PW 4, PW 5 and PW 10 that the
accused persons assaulted PW 5 by sword on his head, due to
which he sustained cut injury. As such, the medical evidence
belies the description of the assault made upon PW 5 at the hands
of the accused persons.
80. What, therefore, emerges from the above discussion
is that the ocular account furnished by PW 4, PW 5 and PW 10 is
not supported by the medical evidence in respect of the several
specific blows attributed to the appellants.
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81. In the backdrop of the aforesaid facts, the ocular
testimony of PW-4, PW-5 and PW-10 has also to be tested on the
touchstone of their conduct at the time of and immediately after
the occurrence. The conduct attributed to these witnesses does not
appear to be consistent with the conduct which would ordinarily
be expected from persons who had witnessed such a serious and
brutal assault upon a close family member. Their conduct, as
emerging from their own evidence, therefore, assumes
significance in assessing the probability of their presence and the
truthfulness of the manner in which they claim to have witnessed
the occurrence. When the ocular testimony is not only confronted
with the medical and physical evidence but is also found to be
inconsistent with the natural conduct of the witnesses, their
evidence cannot be accepted merely because they have
corroborated one another. In such circumstances, the Court is
required to examine whether the conduct of the witnesses lends
assurance to their ocular version or, on the contrary, creates a
reasonable doubt regarding the manner in which the occurrence is
alleged to have taken place.
82. In the present case, the evidence adduced by the
prosecution appears to be an admixture of truth and exaggeration.
The homicidal death of Md. Nehal is established by the post-
Patna High Court CR. APP (DB) No.706 of 2004 dt.01-09-2026
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mortem examination, but the prosecution has failed to establish
with the same degree of certainty the participation of each of the
appellants in the manner alleged by PW 4, PW 5 and PW 10. The
fatal injury on the vertex, by itself, cannot establish which of the
accused caused it, particularly when different witnesses have
attributed different weapons and blows to different accused
persons and the medical evidence does not correspond with those
individual attributions.
83. The Court is conscious of the fact that medical
evidence is ordinarily corroborative and not substantive evidence
of the occurrence. But in the present case the medical evidence
assumes importance because the ocular witnesses have furnished a
highly specific account of the nature and number of blows. When
such a specific account is not borne out by the injuries found
during post-mortem examination, and when the place where the
assault is alleged to have taken place does not disclose any blood
or other mark of occurrence, the discrepancy goes to the root of
the prosecution case.
84. The cumulative effect of the aforesaid
circumstances is that the prosecution has failed to present a wholly
consistent and reliable account of the occurrence. The evidence of
PW 4, PW 5 and PW 10 cannot be accepted in its entirety merely
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on the ground that they are eyewitnesses. Their relationship with
the deceased, the material omissions proved by PW 11, the
absence of blood at the alleged second place of occurrence, the
failure to objectively establish the alleged damage to the roof and,
above all, the absence of medical correspondence with the several
specific weapon blows, together create a reasonable doubt
regarding the participation of the appellants in the occurrence in
the manner alleged.
85. What emerges from the above discussion is that the
evidence adduced by the prosecution is an admixture of half-truth
and exaggeration and, since the truth, if any, is so inextricably
mixed with the doubtful portions of the prosecution version that it
is not possible to safely disengage one from the other, the
prosecution case becomes unsafe for recording conviction against
the appellants. This is particularly so when the prosecution seeks
to hold all the accused liable by attributing distinct overt acts to
each of them. The principle that the Court must guard against
implicating an innocent person along with the guilty assumes
significance in such circumstances.
86. At any rate, in the light of the nature of the evidence
available on record, the prosecution cannot be said to have proved
its case against the appellants beyond reasonable doubt. The
Patna High Court CR. APP (DB) No.706 of 2004 dt.01-09-2026
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homicidal death of Md. Nehal is proved, but the prosecution has
failed to establish beyond reasonable doubt that the appellants
were the persons who, acting in furtherance of their common
object, caused the fatal injuries in the manner alleged.
87. In the facts and attending circumstances of the
present case, the appellants ought to have been accorded benefit of
reasonable doubt inasmuch as the prosecution has failed, in the
light of the discussion of the evidence on record, to bring home
the charges against the appellants beyond all reasonable doubt.
88. In the result and for the foregoing reasons, this
appeal is allowed. The impugned conviction of the appellants and
the sentences passed against them by the judgment and order,
under appeal, are hereby set aside. The appellants are held not
guilty of the offence, which they stand convicted of, and they are
hereby acquitted of the same under benefit of doubt.
89. Since the appellants are on bail, their bail bonds are
hereby cancelled and their sureties shall stand discharged.
90. Registry shall, forthwith, send a copy of this
judgment and order to the learned trial Court along with the
Lower Court Records.
(Anil Kumar Sinha, J.)
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Alok Kumar, J.:-
I agree.
( Alok Kumar, J.)
Prabhakar Anand/-
AFR/NAFR AFR
CAV DATE 08-07-2026
Uploading Date 01-09-2026
Transmission Date 01-09-2026