Sk. Habib & Ors. vs The State of Jharkhand

C.A.V. on 18.06.2026 Pronounced on 29.07.2026

At the outset, it is pertinent to mention here that during pendency of this appeal, appellant no. 1 Sk. Hajwa and appellant no. 4 Sk. Subhani have died and the appeal on their behalf was abated in terms of order dated 24.02.2025. Surviving appellants are hereby re-numbered.

Heard learned counsel for the parties.

The instant Criminal Appeal is directed against the judgment of conviction dated 24.08.2005 and order of sentence dated 27.08.2005 passed by learned 1^st Additional Sessions Judge, Godda in Sessions Case No. 120 of 1998 / 08 of 2004, whereby and whereunder, the appellants have been held guilty for the offence under Sections 147 and 307/149 of the I.P.C. and sentenced to undergo R.I. for six years along with fine of Rs. 1,000/- for the offence under Sections 307/149 of I.P.C. and R.I. for one year for the offence under Section 147 of I.P.C. with default stipulation. Both the sentences were directed to run concurrently.

The prosecution story, as per fardbeyan of the informant, Md. Idrish, is that the informant has recently brought a pump set from his father-in-law and the motor was found defective. Hence, on 10.11.2006 at about 7:00 A.M., the informant along with Sk. Sattar were going to call a mechanic for repair of the pump and reached near Tati Tola, where Sk. Hajuwa armed with maskat, Ayub and Doctor Mojib armed with gun, Sarif armed with masket and Nazir armed with lathi and Khanti along with Subhani and his three sons and one Gohar along with 30-40 Muslims surrounded him. It is alleged that Ayub exploded a bomb, as a result of which, the informant sustained injuries on his head and fell down. Thereafter, above accused persons lifted him and brought towards eastern bandh of Village, where other persons of mob were saying to chop his neck and some were saying that he is innocent and advised to release him, but the accused Sarif caught hold of the hand of the informant and accused Ayub chopped of his right hand with a gadasa and threw it in the water. Thereafter, Sarif caught hold of hand of Sattar and Ayub chopped of right hand of Sattar. Thereafter, these persons took out chopped off hand of the informant from the water and took both chopped hands to somewhere. Sattar was lying in the paddy field where Habib Dahiar came and told that Sattar was still alive and started striking to Sattar with bahngi, causing injury on his head and hand. The motive behind the occurrence is alleged to be land dispute between father-in-law of the informant and maternal grandfather of Ayub.

On the basis of above information, FIR being Mahgama P.S. Case No. 123 of 1996 was registered against the appellants for the offence under Sections 147, 148, 149, 323, 324, 326, 307 and 436/34 of the I.P.C. and Section 3/4 of the Explosive Substance Act.

After completion of investigation, charge sheet was submitted against the accused persons. Md. Ayub died prior to submission of the charge-sheet. After taking cognizance of the offence, the learned Magistrate committed the case to the Court of Sessions. The charges were framed and read over and explained to the accused persons, to which, they denied from the charges and claimed to be tried.

In course of trial, the prosecution has examined altogether 10 witnesses and also adduced following documentary evidence:-

The case of defence is that appellants are innocent and have falsely been implicated in the case. The further case of the defence is that Sk. Idrish and Sattar are veteran criminal and against them several criminal cases are pending. No oral evidence has been adduced by the defence. However, defence has adduced certified copies of charge sheets, three certified copies of order sheets and two sheets of certified copies of the charges framed in courts, which have been marked Exhibit-A/1, A/2, A/3, A/4, B, B/1, B/2, B/3, C and C/1 respectively.

The learned trial court, after considering the oral as well as documentary evidence available on record, acquitted the appellants for the offence under Section 436 of the I.P.C. and Sections 3 / 4 of the Explosive Substance Act, rather found guilty for the offence under Sections 147 and 307/149 of the I.P.C. and sentenced them as stated above.

Learned counsel for the appellants assailing the impugned judgment has contended that except the injured persons Md. Sattar and informant, there is no eye-witness of the occurrence to corroborate the prosecution story. There are material contradictions and discrepancies in the evidence of informant and another injured Md. Sattar, which has totally displaced the contents contained in the F.I.R. It is further submitted that even if the entire evidence of injured persons in the light of their injury report proved by Doctor (P.W.-8) is taken to be true on its face value, no offence under Section 307 of I.P.C. is constituted. Admittedly, there was eight accused persons executed the commission of offence allegedly armed with various lethal weapons, but only hands of the informant and one Sattar have been chopped during the occurrence. If the accused persons had intention to commit murder of the injured persons, there was no intervening circumstance to prevent them from causing murder even assaulting on vital part of body like head and neck by sharp cutting weapon, but the same has not been done by the appellants.

It is further submitted that some cases have been lodged by the accused persons against the informant party of this case, wherein charge sheet has been submitted against Sk. Idrish as well as Sk. Sattar.

It is further submitted that the main allegation of chopping hands of the injured persons namely, Md. Idrish and Sk. Sattar is leveled against Ayub only, who has died even before submission of charge sheet in this case. Rest of the appellants has been simply dragged in this case on account of alleged land dispute between the parties.

It is further submitted that no specific overt act has been attributed against the live appellants namely, Sk. Habib, Sk. Nazir, Sk. Safique, Sk. Kalim, Sk. Rafique and Sk. Sarif. There is simple allegation against Sk. Sarif that he caught hold of the injured persons, while Md. Ayub chopped of their hands and against Sk. Habib, there was allegation of assault to Satter on the head and hand, after chopping of his hand by Md. Ayub, but no such injury was found in the injury report of Md. Sattar.

It is further submitted that there is no whisper in the judgment passed by the learned trial court as to what was the common object of the appellants in prosecution of which the alleged occurrence took place. Therefore, the conviction of the other appellants with the aid of the Section 149 of the I.P.C. is absolutely unwarranted and illegal. Therefore, the appellants deserve to be acquitted from the charges leveled against them for the offence under Sections 307/149 of the I.P.C.

The learned trial court itself after considering the entire gamut of evidence has acquitted the appellants for the charge under Section 436 of the I.P.C. and Section 3 / 4 of the Explosive Substance Act. Therefore, this appeal may be allowed.

On the other hand, learned APP appearing for the State has opposed the contentions raised on behalf of the appellants and defended the impugned judgment and order on merits.

I have gone through the record the case along with impugned judgment of conviction and order of sentence of the appellants in the light of contentions raised on behalf of both side.

Before imparting my judgment, it would be apposite to take brief resume of prosecution evidence.

It appears that altogether 10 witnesses have been examined in this case, out of which P.W.-3 Manogi Paswan, P.W.-4 Sk. Ajhar, P.W.-5 Md. Israfil and P.W.-6 Ram Vilah Paswan turned hostile by the prosecution.

P.W.-1 Koko Devi. She has deposed that about five years ago, she was in her house. She has further deposed that Sarif, Habib, Kalim and Safique chopped off the hand of Idrish and also chopped the hand of one other person, whose name she could not remember. She further deposed that after chopping hands of Idrish, Sarif and others torched her house, as a result of which, her entire house was burnt. Six accused persons were present on the day of her examination, but she could only identify Sarif and she could not identify other accused persons in the dock.

P.W.-2 Sk. Sattar @ Billo. He is one of the injured witness. He has deposed that about six years ago at about 7-8 A.M. he was going Narayanpur from Bishnupur along with Idrish and when he reached near Tanti Tola of Pamkol, he saw the villagers armed with gun masket etc. in number about 150-200, out of whom, he identified Ayub, Gohar, Kirani, Hajuwa and other persons, but he does not remember the name of some persons. He further deposed that Gohar Kirani put towel on his neck and got him fell down by pulling towel and then Sarif Gohar and all the accused jointly pressed him and Ayub chopped off his right hand with a gadasa and thereafter, they left him. He further deposed that after half an hour Hajuwa came and again assaulted him with a Bahangi. He further deposed that accused persons had also chopped off the hand of Idrish.

P.W.-7 Sk. Samsul. He has deposed he has heard about the occurrence from the other person and he did not see the occurrence.

P.W.-8 Dr. Uchit Lal Mandal. He has deposed that on 10.11.1996, he was posed at P.H.C. Mahgama under district Godda and on that day at 6:00 P.M., he examined Md. Idrish and found following injuries on his person :-

According to his opinion, the injury no. 1 is grievous in nature, caused by sharp cutting heavy weapon and injury no. 2 is simple in nature, caused by hard and blunt substance within 12 hours. He has proved the injury report, marked as Exhibit-1.

He has further deposed that on the same day at 6:15 P.M., he examined Md. Sattar and found following:-

According to his opinion, Injury No. 1 is grievous caused by sharp cutting heavy weapon and injury nos. 2 and 3 are simple in nature, caused by hard and blunt substance. He has proved the injury report of Md. Sattar, marked Exhibit-1/1.

P.W.-9 Mr. Idrish is the informant and one of the injured witnesses of this case. He has deposed that in the month of November in the year 1996 on Sunday, he was going to Narayanpur from his sasural Ghutiyani for calling a pumping set repairer and at about 7:30 – 8:00 A.M. in the morning when he reached near Tanti Tola of Village Ramkol, he saw 30-40 persons assembled with arms. Out of whom he identified nine persons namely, Ayub, Sk. Sarif, Hajuwa, Nazir, Subhani, three sons of Subhani and Gohar. He deposed that the accused exploded a bomb on him, as a result of which, he fell down and then Sarif caught hold him and other eight accused persons rod on his chest and on leg and Ayub doctor chopped off his right hand with gadasa and threw the chopped hand in water. He further deposed that then all the accused persons chopped of the hand of Sattar. He further deposed that Habib Dahiar came there and said that still they were alive and then Habib Dahiar started assaulting Sattar with a Bahangi and broke his head and left hand and then all accused fled away. He further deposed that there was a long-standing dispute between his father-in-law and the grandfather of Ayub, so the accused persons assaulted him.

P.W.-10 Manikant Singh is a formal witness. He identifies the hand writing and signature of Manjur Ali, the then A.S.I. of Mangama Police Station in the fardbeyan and also identifies the hand writing and signature of the then Officer-in-Charge, Sri R.B. Nanhe in the formal F.I.R. marked as Exhibit-3. The fardbeyan has been marked as Exhibit-2.

Before imparting my judgment, it is pertinent to mention the relevant provisions of law:-

It has been held by the Hon’ble Apex Court in the case of Hari Singh Vs. Sukhbir Singh & Others, as reported in (1988) 4 SCC 551, at para-7 that:-

It has also been held by the Hon’ble Apex Court in the case of Jage Ram & Others Vs. State of Haryana, as reported in (2015) 11 SCC 366, at para-12 that:-

From recapitulating the entire evidences available on record, it appears that there is severance of hands of both injured persons, but there is no opinion of the conducting Medical Officer that above injuries were likely to cause death or dangerous to life. It appears that although the charge were framed for the offence under Sections 147, 307/149 and 436 of the I.P.C. and Section 3 / 4 of the Explosive Substance Act, but the learned trial court considering the gravity of offence wrongly assumed that the said injuries were inflicted with intention to kill the injured persons or to knowledge that such injury in all probability may cause death of the injured persons and therefore the trial court has wrongly convicted the appellants under Sections 307 of the I.P.C.

For constituting the offence under Section 307 of the I.P.C., the Court has to see, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section 300 of the I.P.C.

In the instance case, the grievous injuries sustained by injured persons are found not on the vital part of the body and the injuries caused to the informant and Sk. Sattar appear to be happened in sudden manner without any intention to kill the injured persons or the knowledge as required to constitute offence of murder under Section 300 of the I.P.C. It is also trite that the intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflected can be considered to infer intention.

There were eight accused persons executed the commission of offence allegedly armed with various lethal weapons, but only hands of the informant and one Sattar have been chopped during the occurrence. If the accused persons had intention to commit murder of the injured persons, there was no intervening circumstance to prevent them from causing murder even assaulting on vital part of body like head and neck by sharp cutting weapon, but the same has not been done by the appellants.

Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, I am of the considered view that conviction and sentence of the appellants for the offence under Section 307 of the I.P.C. is not sustainable and justified under law, which is hereby set aside. However, from the facts of the case, the offence under Section 326 of the I.P.C. is made out.

The relevant provision of Section 326 of the I.P.C. reads as under:-

Further the main allegation of chopping of the hands of both the injured is levelled against Md. Ayub only, to whom accused Sarif had facilitated. Md. Ayub had died before filing of charge sheet, hence, only Sarif (since he had facilitated the Md. Ayub in chopping of the hands of both the injured) is guilty for the offence under Section 326 of I.P.C. As regards to the involvement of other accused persons is concerned, the prosecution had failed to prove any overt act by other accused persons that they have a common object in chopping of the hands of injured persons. Both the injured witnesses had not deposed in their evidence that any of the accused persons had facilitated in crime or had committed any overt act except Md. Ayub and Sk. Sarif. Therefore, except Sk. Sarif all the accused persons are not guilty for the offence and liable to be acquitted.

Therefore, considering the overall aspect of the case, the appellants namely, Sk. Habib, Sk. Nazir, Sk. Safique, Sk. Kalim and Sk. Rafique are acquitted from the charges leveled against them.

This Court further finds in the background of the evidence available in this case, offences under Section 326 of the I.P.C. is constituted only against the appellant namely, Sk. Sarif, as there is direct allegation against Sk. Sarif that he caught hold of both the injured then other co-accused Md. Ayub (since deceased) severed their hands by inflicting gadasa blow. It was not possible for the co-accused Md. Ayub (since deceased) in severance of hands of the injured unless and until their hands were caught by the Sk. Sarif to facilitate the commission of above offence. Therefore, the accused appellant Sk. Sarif is guilty for the offence under Section 326 of I.P.C.

So far sentence awarded to Sk. Sarif is concerned, I do not find any interference in the sentence which is awarded to the appellant by the learned trial court for the offence under Section 307 of I.P.C. is maintained for the offence under Section 326 of I.P.C.

Accordingly, this appeal is partly allowed.

The appellant Sk. Sarif is on bail. His bail bond is hereby cancelled.

The appellant – Sk. Sarif is directed to surrender before the concerned Trial Court within two months from the date of this judgment and receive the remaining sentence awarded by the learned Trial Court and undergo the remaining period of imprisonment, failing which, the learned Trial Court shall take all coercive steps in securing the attendance of the appellant-Sk. Sarif and sending him under proper conviction warrant to jail custody for undergoing the remaining period of sentence awarded to him.

Pending I.A., if any, stand disposed of.

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