Jharkhand High Court
Sikander Ansari ? Bhondu vs State Of Jharkhand on 11 January, 2016
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
Cr. Appeal (D.B.) No. 1106 of 2005
With
Cr. Appeal (D.B.) No. 865 of 2005
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Against the judgment of conviction and order of sentence dated 12th
July,2005 & 13.07.2005 respectively passed by the 1st Addl. Sessions
Judge, Chaibasa in S.T.No.194/2004.
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Sikander Ansari @ Bhondu. Appellant (in Cr.Appeal No.1106/05)
Zaheer Ansari @ Zaheer Khan. ,, (in Cr.Appeal No.865/05)
-Versus-
The State of Jharkhand. ... Respondent (in both the appeals).
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For the Appellants: Mr. B.M.Tripathy, Sr. Advocate.
For the State: Ms. Laxmi Murmu, A.P.P.
Mr. Krishna Shankar, A.P.P.
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PRESENT
THE HONE'BLE MR. JUSTICE D.N.UPADHYAY
THE HON'BLE MR. JUSTICE RATNAKER BHENGRA
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By Court These Cr. Appeals have been directed against the judgment
of conviction and order of sentence dated 12th July, 2005 and 13.07.2005
respectively passed by the 1st Addl. Sessions Judge, Chaibasa in
connection with S.T.No.194/2004, corresponding to G.R.No.441/2003
(Noamundi P.S. Case No.40/2003) whereby the appellant, namely,
Sikander Ansari @ Bhondu has been held guilty for the offence punishable
under Sections 302/324 of the Indian Penal Code but stood acquitted
from the charge framed under Section 452 of the Indian Penal Code
whereas both the appellants have been held guilty for the offence
punishable under Sections 302/120B of the Indian Penal Code.
The appellant Sikander Ansari @ Bhondu has been
sentenced to undergo R.I. for life under Section 302 of the Indian Penal
Code. He has further been sentenced to undergo R.I. for three years for
the offence punishable under Section 324 of the Indian Penal Code.
The appellant Zaheer Khan @ Zaheer Ansari has been
sentenced to undergo R.I. for life under Section 302 read with Section
120B of the Indian Penal Code. No fine against any of the appellant has
been imposed.
2. The prosecution case as it appears from the fardbayan of
Devendra Mainti (P.W.2) recorded on 24.10.2003 at 10:15 hours at Tisco
Hospital Noamundi within the district of West Singhbhoom is that on
24.10.2003at about 8:30 a.m. the informant was brushing teeth in front of the medicine shop of his brother. Devdas Mainti (deceased) was sitting on a revolving chair in his medicine shop and sales man Beer Singh Purti was busy in dealing the customers. In the meantime, Hawaldar Jamil 2. Ahmad came on a bicycle and asked for medicine. It is disclosed that Sikander Ansari @ Bhondu suddenly appeared and hurled two bombs on Debdas Mainti. Due to explosion of the bomb, Debdas Mainti, Hawaldar Zamil Ahmad (P.W.1) and sales man Beer Singh Purti (P.W.3) sustained injuries on their person. Debdas Mainti succumbed to his injuries whereas remaining two were treated in the Hospital. Reason behind the occurrence disclosed by the informant is that both appellants are own brother, Zaheer Khan had been demanding Rs.5,00,000/- from the deceased and threatened him to kill if the amount is not paid. It is stated in the fardbayan that due to the above reason appellant Zaheer Khan @ Zaheer Ansari sent his brother Sikander Ansari @ Bhondu to commit the offence, who committed murder of Debdas Mainti by causing injury by means of explosive substance. On the basis of fardbayan of Devendra Mainti, Noamundi P.S. Case No. 40/2003 dated 24.10.2003 under Sections 452/324/302/120B of the Indian Penal Code and 4/5 of the Explosive Substance Act was registered.
I.O. after due investigation submitted charge-sheet under Sections 452/324/302/120B of the I.P.C. and accordingly cognizance was taken.
Since report from F.S.L. regarding explosive substance was awaited, no charge-sheet under Section 4/5 of the Explosive Substance Act was submitted.
The case of the appellants was committed to the court of sessions and registered as S.T.No.194/2004. Charges against the appellants were framed and they were put on trial.
3. The prosecution in order to substantiate charges, examined altogether 10 witnesses and proved the documents. Learned Addl. Sessions Judge at the conclusion of trial held the appellants guilty as aforesaid and sentenced them accordingly and hence these appeals.
4. The appellant, namely, Zaheer Khan @ Zaheer Ansari has assailed the impugned judgment mainly on the ground that the prosecution has miserably failed to prove charge framed under Section 302 read with Section 120B of the Indian Penal Code. Two of the prosecution witnesses namely Satya Brat Barik (P.W.7) and Putul Mainti (P.W.8) have admitted that appellant was in jail in another case and he was not physically present on the date, time and place of occurrence. Learned Addl. Sessions Judge has charged both the appellants for the offence punishable under Sections 302/120B of the Indian Penal Code disclosing the date of occurrence as 24.10.2003 but the prosecution has failed to bring on record any evidence that both the appellants met each 3. other on that very date. The Investigating Officer has not been examined so it could not be said whether investigation on this point was done or not. No Jail Authority has come forward nor any jail register has been brought on record to show that there was meeting between appellant Sikander Ansari @ Bhondu and Zaheer Khan @ Zaheer Ansari. The prosecution has tried to prove conspiracy for the murder by bringing on record that appellant-Zaheer Khan had demanded Rs. 5,00,000/- from the deceased and for that threats were hurled. If it was so, no witness has disclosed any date, time and place where threat was hurled by Zaheer Khan to the deceased or a sum of Rs.5,00,000/- was demanded. P.W. 7 & P.W. 8 were cross-examined on this point but they have failed to give any date, time and place rather they have said that deceased was disturbed for some time prior to the occurrence. Since the witnesses have failed to bring on record any prior date of incident on which threat was hurled by appellant- Zaheer Khan, it could not be said that the murder was the result of that threat hurled by Zaheer Khan.
Last but not the least, it is submitted that the appellant- Zaheer Khan was not at all present at the scene of occurrence is almost clear from the statement of all the eye-witnesses. In the circumstances, it is submitted that charge framed under Section 302/120B by the learned Addl. Sessions Judge against the appellant is not proved and the judgment of conviction and sentence is liable to be set aside.
5. Learned Counsel has submitted that prosecution has failed to prove manner of occurrence. It is admitted case of the prosecution that the deceased died due to the injury caused to him by means of bomb. The prosecution alleges that iron nail seized from the place of occurrence but no report from F.S.L. has been brought on record to bring that nails recovered from the place of occurrence had been containing explosive substance. No charge either under Section 4 or Section 5 of the Explosive Substance Act has been framed. Even charger-sheet under those Sections has not been submitted. The eye-witnesses are highly interested in getting the appellant guilty for the offence alleged. The prosecution witnesses have admitted that the deceased was also lodged in jail for about 7-8 months. The informant is also having criminal antecedent. P.W. 7 and P.W. 8 are the brother-in-law and wife respectively of the deceased. Time of occurrence is about 8:30 a.m. which does not appear to be business hour. The statement of informant could be relevant when he said that he was brushing teeth on that point of time. It could be said that it was not a suitable time to commit offence and that too in the circumstance when it is alleged that the accused persons had hatched out a conspiracy to commit 4. murder from before. The appellant was well known to the deceased and his family members. It is disclosed that he had come to the place of occurrence wrapping himself in a black coloured 'Sal' but without concealing his face, appears improbable. The Investigating Officer has not been examined and that has caused prejudice to the appellants and, therefore, the impugned judgment of conviction and sentence is liable to be set aside.
6. Learned A.P.P. has opposed the prayer and submitted that prosecution case as made out by the informant stood intact during trial. It is not that only family members are the eye-witnesses rather the occurrence was witnessed by an independent person who is none else but a Police Hawaldar. Jamil Ahmed (P.W.1) had been to the place for purchasing medicine and his presence at the place of occurrence was genuine and reasonably explained. Due to hurling of bomb he had sustained injuries and was treated in the Hospital. Injury report has been proved by the Doctor. Hawaldar Jamil Ahmed has corroborated the prosecution case in his deposition in Court. P.W. 3 Bir Singh Purti is another injured, who was working as sales man in the medicine shop of the deceased. Bir Singh Purti has also sustained injuries in the incident and he has supported the prosecution case. Nothing has been brought on record to disbelieve the testimony of these two injured witnesses. Abhishek Rai, (milkman) (P.W.4) had also seen the incident and named the appellant Sikander Ansari. It is submitted that besides P.W. 2, P.W. 7 & P.W. 8, these three independent witnesses i.e. P.W. 1, P.W. 3 and P.W. 4 have fully supported the prosecution case. Dr. Lalit Minj (P.W. 5) had conducted autopsy on the dead body of the deceased-(Devdas Mainti) and the injuries found on the person of deceased were caused by explosive substance. Dr. B.P.Patel (P.W.6) has proved injury report. Fardbayan, inquest report & seizure list have been proved by P.W. 10. No vital contradictions have been taken from the mouth of any of the material witnesses and, therefore, non-examination of the I.O. has not caused any prejudice to any of the appellant. There is no merit in these appeals and the same are liable to be dismissed.
7. We have carefully examined the evidence and document available on record. We have also gone through the lower court record and other material available before us. The evidence as against appellant Sikander Ansari is direct and appears to have been proved by all the material witnesses. The gist of the deposition of material witnesses is that the deceased was sitting in his medicine shop, sales man Bir Singh Purti was engaged in dealing the customers, Hawaldar Jamil Ahmed had been to 5. the place to purchase medicine, the informant Devendra Mainti was brushing teeth near the shop, Putul Mainti (wife of the deceased) was also present in the shop. In the meantime appellant-Sikander Ansari appeared to the scene of occurrence and hurled two bomb on Debdas Mainti. The bomb so exploded, caused injury to Devdas Mainti, Hawaldar Jamil Ahmed and Bir Singh Purti, injury caused to Devdas Mainti proved fatal, Abhishek Rai (P.W.4) had witnessed the occurrence.
Devendra Mainti (P.W.2) in his fardbayan had given detail of the occurrence. After institution of the case, investigation was carried out, Investigating Officer had recorded statement of witnesses, performed further formalities like seizure list, inquest etc. After finding the occurrence true both the appellants were charge-sheeted whereas 3rd accused Saithia has been declared absconder. We find that evidence on the point that appellant-Sikander Ansari hurled two bomb on the deceased and due to explosion of those bombs, the deceased sustained injury and died is consistent. Hawaldar Jamil Ahmed (P.W.1) (injured witness), Bir Singh Purti (P.W.3) (injured witness), Devendra Mainti (P.W.2) (Informant), Abhishek Rai (P.W.4) (independent witness), Satya Brat Barik (P.W.7) (eye- witness), Putul Mainti (P.W.8) (eye-witness) have fully supported this fact that appellant-Sikander Ansari hurled bomb as a result the deceased and witnesses P.W. 1 and P.W. 3 had sustained injuries. Devdas Mainti succumbed to his injuries. The ocular evidence as disclosed by aforesaid witnesses find support from the statement of Dr. Lalit Minj (P.W. 5), who had conducted autopsy on the dead body of Devdas Mainti. The deceased and two injured were taken to Tisco Hospital of Noamundi where they were treated by Dr. B.P.Patel (P.W.6). P.W. 6 has proved the injury report as Ext. 4, 4/1 and 4/2. P.W. 1 and P.W. 3 have sustained injuries in the incident find support from the injury report Ext. 4/1 and 4/2. Therefore, we find that prosecution evidence is intact and there is nothing on record to disbelieve P.W. 1 to P.W. 4, P.W. 7 and P.W. 8 so far the allegation levelled against appellant-Sikander Ansari, we do not feel inclined to interfere with the finding of the Trial Court in respect of appellant-Sikander Ansari @ Bhondu. Accordingly, judgment of conviction and sentence recorded under Sections 302/324 of the Indian Penal Code by the learned Addl. Sessions Judge against Sikander Ansari @ Bhondu is concerned is hereby upheld. Accordingly, Cr. Appeal (D.B.) No.1106/2005 stands dismissed.
Now coming to Cr. Appeal (D.B.) No.865/2005 in which Zaheer Khan @ Zaheer Ansari is the appellant, who has been held guilty under Section 302 of the Indian Penal Code read with Section 120B of the 6. Indian Penal Code. There appears substance in the argument advanced that not only charge framed under Section 302 & 120 of the Indian Penal Code is defective but the prosecution has miserably failed to substantiate the charge. In the light of argument, we have gone through the deposition of witnesses. No witness has said that on the date of occurrence i.e. on 24.10.2003 there was any meeting between appellant Zaheer Khan @ Zaheer Ansari and co-convict Sikander Ansari. Evidence on record is that Zaheer Khan @ Zaheer Ansari was lodged in jail in another case from before the incident. This fact also find support from the statement of appellant recorded under Section 313 of the Cr.P.C. It is not on record as to when and on which place this appellant has demanded Rs. 5,00,000/- from the deceased and threatened him to face consequence. Neither the prosecution nor the appellant has brought it on record as to from which date and in which case the appellant Zaheer Khan @ Zaheer Ansari was in custody. No witness has deposed that murder of Devbad Mainti had taken place in quick succession of any threat alleged to have been given by this appellant to the deceased. Investigating Officer has not been examined so this has now become unknown to the record whether on the point of conspiracy he had made any investigation or not ? On this count non- examination of the I.O. has caused prejudice to the appellant.
In the circumstances and also on the basis of evidence available on record, we feel no hesitation to hold that the prosecution has failed to prove the charge framed under Section 302/120 of the Indian Penal Code against the appellant. In the result, Cr. Appeal No. 865/2005 stands allowed. The judgment of conviction and sentence dated 12th July,2005 & 13.07.2005 respectively passed by the 1st Addl. Sessions Judge, Chaibasa in S.T.No.194/2004 stands set aside. He is on bail, therefore, discharged from the criminal liability and set at liberty.
[D.N.Upadhyay,J.] [Ratnaker Bhengra,J.] Jharkhand High Court, Ranchi Dated the 11.01.2016 P.K.S./N.A.F.R.