Jharkhand High Court
2002) vs The State Of Jharkhand on 22 January, 2021
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 252 of 2010
(Against the judgment of conviction and the order of sentence dated 25.2.2010 passed
by the Additional Sessions Judge, Fast Track Court no. III, Dhanbad in connection with
S.T. No. 70 of 2004 arising out of Govindpur P.S. Case no. 34 of 2002, G.R. no. 638 of
2002)
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Ibrahim Ansari, son of late Habib Mian, resident of village Fakirdih, P.O. and P.S. Govindpur, District Dhanbad ...... Appellant
-Versus-
The State of Jharkhand ...... Respondent
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CORAM : HON'BLE MR. JUSTICE RATNAKER BHENGRA
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Heard through Video Conferencing
For the Appellant : Mr. Prabir Chatterjee, Advocate
For the Respondent : Ms. Nehala Sharmin, A.P.P.
C.A.V. on: 07.7.2020 Pronounced on: 22/01/2021
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This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 25th February, 2010 passed by the Additional Sessions Judge, Fast Track Court no. III, Dhanbad in connection with S.T. No. 70 of 2004 arising out of Govindpur P.S. Case no. 34 of 2002, G.R. no. 638 of 2002 whereby and whereunder the appellant was convicted u/s 324 of the Indian Penal Code and sentenced to undergo rigorous Imprisonment for two years with a fine of Rs. 1000/- and in default of payment of fine, appellant was to undergo rigorous Imprisonment for three months.
2. The case of the prosecution as per fardbeyan dated 11.03.2002 of the informant Md. Yusuf Ansari-PW-4 is that on 10.03.2002 at 11:30 a.m. measurement of disputed land of Ibrahim Mian, Rajjak Mian and Ghulam Mustafa was being done in presence of local people and informant was also present there as a panch. It is alleged that when the measurement of gali was being done then Ibrahim Mian became furious and said the measurement to be wrong and started abusing the informant. When informant restrained Ibrahium abusing him then Ibrahim went inside his house and returned with a kulhari along with his son Zahir Abbas and inflicted tangi blow on the nose of the informant as a result blood oozed out. Zahir @ Munna assaulted the informant with lathi upon which informant raised hulla and several persons assembled there. Thereafter, 2 Akhtar Ansari and Amir Ansari came there armed with lathi and assaulted Murtuza Ansari upon which he sustained head injury and blood oozed out. Informant further stated that when he was being taken to the Primary Health Centre, then in the meantime Salim Ansari armed with rod ran but he was caught by persons present there. The occurrence was witnessed by persons present there, panch Samsuddin Ansari (mukhiya), Hamid Mian and others.
3. On the basis of the fardbeyan of the informant Govindpur P.S. Case no. 34 of 2002 U/Ss. 323, 324,341,307/34 of the IPC was registered against five persons including the appellant. After completion of investigation, charge sheet was submitted against the accused persons and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the accused persons under Sections 341,324 and 307/34 of the IPC. On conclusion of trial the learned trial court acquitted the four accused persons of the charges but convicted and sentenced the appellant as aforesaid. Hence, this appeal.
4. Prosecution has examined altogether five witnesses in support of its case out of whom PW-1 is Shamim Ansari, PW-2 is Hamid Mian, PW-3 Md. Samsuddin is a hostile witness, PW-4 Md. Yusuf Ansari is the informant himself and PW-5 is Dr. Shashi Bhusan Singh, who had examined the injured. Defense has produced the documentary evidence which are FIR of Govindpur P.S. Case no. 35 of 2002 (Ext.-A) and certified copy of charge sheet pertaning to Govindpur P.S. Case no. 35 of 2002 (Ext.-B).
5. PW-4 Md. Yusuf Ansari is the informant of the case. He has stated that his evidence that on 10.3.2002 at about 11:30 a.m. he was present on the spot where the land of Ibrahim Ansari, Rajjak Ansari and Gulam Mustafa Ansari were being measured in presence of several villagers. After the measurement of land and house, the measurement of gali was going on to which Ibrahim objected and said that measurement was not done properly. He started abusing Rajjak and Gulam Mustafa to which the informant restrained him from abusing. Murtaza was assaulted with lathi as a result he sustained injury on his head and blood oozed out. Ibrahim inflicted a kulhari blow on his nose as a result his nose was cut and blood oozed out. He fell down and became unconscious. He and Murtaza were taken to the hospital for treatment. Informant has proved his signature on the fardbayan which was marked as Ext.1. In his cross-examination 3 informant stated that he worked in Primary Health Centre, Govindpur for the last 10 to 12 years and has been allotted quarter. Informant further stated that his son is running a medicine shop where Dr. Shashi Bhushan Singh or PW-5 practices.
6. PW-1 Shamim Ansari has stated in his evidence that the incident had taken place on 10.3.2002 at 11:30 a.m. He was present at the place where the measurement of the land was being done. He was representing the panchayat. The land of Rajjak, Mustafa and Ibrahim were being measured. Ibrahim said the measurement was not correct and he would not accept it and thereafter, hulla started. The members of panch tried to pacify the matter but fight started between Rajjak, Mustafa and Ibrahim. During the fight Ibrahim gave a farsa blow on the nose of Yusuf as a result blood oozed out. He sustained cut injury as a result bleeding started and he was taken to the hospital. In his cross-examination PW-1 stated that both the parties are related to him and the informant Yusuf worked in a Government Hospital.
7. PW-2 Hamid Mian has stated in his evidence that on day of incident he was present in the house of Rajjak Mian. The measurement of the gali was being done. Thereafter, quarrel started between Ibrahim and Yusuf then Ibrahim inflicted a kulhari blow on the nose of Yusuf as a result blood oozed out. Yusuf was taken to the hospital for treatment. In his cross- examination P.W.-2 stated that Yusuf Ansari worked as a Compounder in the Govt. Hospital.
8. PW-5 Dr. Shashi Bhusan Singh had examined the injured PW-4 Yusuf Ansari and found the following injuries on his person:-
(i) One incised wound at the breez of nose. Blood was coming out from wound of size 1" x ½"x ½".
(ii) One incised wound on the left side of face by the side of nose from which blood was coming out of the size 1"x ½"x ½".
Doctor has opined that both injuries caused to Yusuf Ansari were caused by sharp cutting weapon and injury no.1 was grievous in nature and injury no.2 was simple in nature. Doctor has proved the injury report of Yusuf Ansari which was marked as Ext.2/1.
ARGUMENTS ON BEHALF OF APPELLANT:
9. Learned counsel for the appellant argued PW-3 Md. Samsuddin has been declared hostile, PW-1 Shamim Ansari is the nephew of appellant as well as the informant, PW-2 Hamid Mian is a friend of the informant, 4 PW-4 Md. Yusuf Ansari is the informant himself and PW-5 is Dr. Shashi Bhusan Singh, who had examined the injured. Learned counsel further submitted that PW-1, PW-2 and PW-4 are related and interested witnesses and even PW-5 is related witness in the sense that the informant works in the same hospital where the PW-5 Dr. Shashi Bhusan works and as such the injury report is a concocted piece of evidence which is apparent from the injury report itself as well as form the evidence of PW-4.
10. Learned counsel for the appellant further submitted that to expose the fabrication it would have been necessary that the Investigating Officer of the case should have been examined and since he has not been examined the fabrication has not been exposed in court and therefore, the benefit of doubt will go to the appellant. Learned counsel has further referred to the evidence of PW-1 and PW-2 and pointed out that in their evidence both PW-1 and PW-2 have stated that PW-4 Yusuf Ansari is a compounder. He has further pointed out from the paragraph no. 4 and 5 of the evidence of PW-5 or the doctor and argues that it is apparent that the doctor and the compounder Yusuf Ansari were known to each other. Learned counsel further argued that there is a counter case bearing Govindpur P.S. Case No. 35 of 2002 and it is evident from the evidence of PW-4 from paragraph no. 7. Learned counsel further stated that on the same set of evidences and facts other accused persons have been acquitted and hence, the appellant herein may also be given benefit of doubt and acquitted. Learned counsel further pointed out paragraph no. 1 of the evidence of PW-5 Dr. Shashi Bhusan and said that he had examined the injured on 10.3.2002 but the fardbeyan is written on 11.3.2002. He has also argued that the fardbeyan was lodged after the examination of the injured by the doctor, which is not a proper procedure and hence, raises suspicion. For this discrepancy and inconsistency in the fardbeyan and in the injury report, it was most necessary that the Investigating Officer of the case should have been examined but that has not been the case. Hence, taken along with the injury report which also seems to be contrived particularly when another injured, namely, Murtaza was not examined, raises doubt in the prosecution case. Lastly, learned counsel for the appellant submitted that for the same set of evidence four accused persons were acquitted by the learned trial court and this applicant also deserves acquittal but learned court below has only singled him out and hence, the impugned judgment passed by the learned court 5 below shall be set-aside. Counsel also pressed that the appellant has faced custody and rigors and vigors of trial, hence, already adequately punished.
ARGUMENTS ON BEHALF OF STATE:
11. Learned A.P.P. has argued that it is clear from the evidence of PW-
4, the informant that he has supported his fardbeyan which is also supported by his evidence and hence, there is no doubt in the prosecution case. PW-1 and PW-2 have also supported the prosecution case and they are eye-witnesses to the assault to the informant. Injury report of Murtaza is also on the record though he has not been examined. So far injury report of PW-4 is concerned it appears that ocular evidence is supported by medical evidence of doctor or PW-5. Learned APP further submits that it is for the first time in this court, the argument has been made on the basis of false and concocted injury report and that should not be allowed. Lastly, learned counsel for the state submitted that the impugned judgment of conviction and order of sentence passed by the learned trial court below is based on evidence and requires no interference by this court.
FINDINGS:
12. Having heard both counsels, having gone through the records of the case and in the facts and circumstances, it appears that the main points which needs to be addressed is that although the date of occurrence was 10.3.2002 but FIR was lodged on the next day i.e. on 11.3.2002 and there is no explanation for lodging the FIR on next day and further if the injured informant was examined on 10.3.2002 why the fardbeyan was lodged on 11.3.2002. Learned counsel also tries to raise the argument that the fardbeyan was recorded after the examination by the doctor which is not a proper procedure. In this regard on perusal of record, I find that during the trial no objection was made by the accused or appellant herein that fardbayan was concocted. From the record, I also find that requisition slip was dated 10.03.2002 and doctor PW-5 had examined the injured on 10.03.2002 but FIR was lodged on 11.03.2002. But as no objection was raised by the defense during trial, hence it can be concluded that occurrence or assault did take place. Hence, there is no inordinate delay in lodging of the FIR and no explanation is required for lodging the same.
13. Another issue raised is that the prosecution witnesses are either related or interested witnesses and therefore their evidence does not carry weight. PW-1 is the nephew of the informant and PW-2 is the friend 6 of the informant and relying on the informant and on related witnesses is not sufficient to meet the ends of justice because they are totally biased against the appellant. The other witness PW-5 Dr. Shashi Bhusan Singh, had examined the injured informant and in the evidence it has come that both the informant and doctor were known to each others as informant was posted in the same Primary Health Centre as dresser where the doctor or P.W.-5 was posted. But only because the witnesses belong to the same family or vicinity does not mean they are not to be believed. Merely, the fact that two persons were working in the same place will not demolish the evidence of the doctor unless something more significant is shown by the appellant. The only allegation is that they were working in the same institution which does not go to show how the injury report have been concocted.
14. In this case, I find that the informant is the injured witness himself and it is well established that the evidence of an injured witness is of greater weight unless significant evidence is produced to the contrary. Moreover, injured PW-4 corroborated his fardbeyan in his evidence which is further corroborated by PW-5 Dr. Shashi Bhusan Singh, who examined the injured informant.. Doctor had found the following injuries on the person of injured informant:
(i) One incised wound at the breez of nose. Blood was coming out from wound of size 1"x1/2"x1/2".
(ii) One incised wound on the left side of face by the side of nose from which blood was coming out size of 1"x1/2"x1/2".
Doctor has opined that the injury was caused by sharp cutting weapon and injury no.1 was grievous in nature.
15. One of the arguments raised was that there was no requisition sent by the police and therefore, injury report is also illegal. Apparently, from the records available it is clear that the injury requisition was not exhibited however, the injury report of the informant P.W.-4 was proved by the doctor PW-5 viz Ext.2/1 and hence, no prejudice is caused to the appellant due to not exhibiting of the injury requisition.
16. The another argument has been raised that there was a case and counter case and the FIR in the present appeal is of Govindpur P.S. Case No. 34 of 2002 and the FIR of counter case is Govindpur P.S. Case No. 35 of 2002. The law as laid down by the Apex Court concerning case and counter case in Nathi Lal and others v. State of U.P. and anothers 7 reported in 1990(Supp) Supreme Court cases 145 is that both the cross cases must be tried by same learned judge one after another and both the judgments must be pronounced by the same learned judge one after the other but that does not seem to be a case in hand because only exhibits pertaining to the counter-case, which is formal FIR pertaining to Govindpur P.S. case no. 35 of 2002(Ext.-A) and its charge sheet(Ext.-B) have been filed by the appellant and judgment in the aforesaid counter- case arising out of Govindpur P.S. case no. 35 of 2002 has not been brought on record or exhibited. Therefore, I have only the evidence on which reliance is placed and given the evidence of the informant PW-4 as well as the corroboration of the doctor PW-5 and the evidence of both the eye-witnesses PW-1 and PW-2 who have also deposed that they were present during the time of the occurrence and have stated in the evidence that measurement of the land was done when the conflagration began and have testified regarding the occurrence in manner only supports the fardbayan.
17. Therefore, the prosecution has been able to prove the charges against the appellant Ibrahim Ansari under section 324 of IPC and accordingly, the judgment of conviction dated 25th February, 2010 passed by the Additional Sessions Judge, Fast Track Court no. III, Dhanbad in connection with S.T. No. 70 of 2004 arising out of Govindpur P.S. Case no. 34 of 2002, G.R. no. 638 of 2002 is sustained and upheld.
18. Regarding sentence, I find that occurrence is of 2002 and more then 17 years have elapsed; appellant was 50 years of age at the time of passing of impugned judgment and now appellant would be in his sixties and appellant had faced rigor and vigours of trial and hence under these mitigating circumstances, the sentence of the appellant is modified and now the appellant is directed to undergo SI for four months and any period of custody already undergone by the appellant shall be subtracted. As injury was caused to the informant PW-4 Md. Yusuf Ansari, so, appellant shall pay compensation of Rs. 5000/- to the informant Md. Yusuf Ansari and in default of which appellant will further undergo one month SI. As compensation has been ordered to be paid by this Court, payment of fine of Rs.1000/- by the learned court below is no longer necessary. The compensation amount may be deposited in the concerned court below. The bail bond of the appellant Ibrahim Ansari is cancelled. The learned court below is directed to take steps for arrest of the appellant to serve out the modified sentence.
819. Accordingly, this appeal is dismissed with modification in sentence.
(RATNAKER BHENGRA,J) Jharkhand High Court,Ranchi dated: 22nd January, 2021 (KNR)/NAFR