Jharkhand High Court
Dildar Hussain S/O Husaini Mian vs The State Of Jharkhand on 3 May, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 4 of 2004
.....
(Against the judgment of conviction dated 12.12.2003 and order of sentence dated 17.12.2003 passed by 4th Additional Sessions Judge, (Fast Track Court No. 1), Godda in Sessions Case No. 217/86 18/2002
1. Dildar Hussain s/o Husaini Mian
2. Arsad Hussain s/o Dildar Hussain
3. Abul Hussain, s/o Dildar Hussain,
4. Tunnu @ Mister Mian s/o Dildar Hussain, All residents of Godda Town P.S. Godda (T), District- Godda.
..... Appellants
Versus
The State of Jharkhand .... Respondent
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellants :Mr. Lakhan Chandra Roy, Advocate
For the State :Mrs. Niki Sinha, Additional Publice Prosecutor
For the Informant :Mr. Manoj Kumar Sah, Advocate
By Court:-
Heard learned counsel for the appellants Mr. Lakhan Chandra Roy and learned counsel for the State, Mrs. Niki Sinha, learned Additional Public Prosecutor and learned counsel for the Informant, Mr. Manoj Kumar Sah.
2. The instant Criminal Appeal has been preferred against the judgment of conviction dated 12.12.2003 and order of sentence dated 17.12.2003 passed by 4th Additional Sessions Judge, (Fast Track Court No. 1), Godda in Sessions Case No. 217/86 / 18/2002 whereby four appellants have been convicted by the learned Trial Court for offence punishable under Section 307/149 of the Indian Penal Code, and appellants no. 2, 3 and 4 have also been convicted under Section 147 of the Indian Penal Code. No finding with respect to Section 323 of the Indian Penal Code has been given, as the appellants have already been convicted for offence under Section 307/149 of the Indian Penal Code and awarded rigorous imprisonment for five years for the offence under Section 307/149 of the Indian Penal Code and rigorous imprisonment for one year for the offence punishable under Section 147 of the Indian Penal Code and Dildar Hussain Appellant no. 1 has been awarded two years rigorous imprisonment for offence under Section 148 of the Indian Penal Code. All the sentences are directed to run concurrently, the period already undergone in jail by the appellants will be set-off from their respective sentences.
2Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred on 05.01.2004 by four appellants which was admitted on 02.04.2004 by suspending their sentences and releasing them on bail. Since then, the matter is pending before this Hon'ble Court.
During pendency of the appeal, appellant no. 1 Dildar Hussain died on 17.07.2007. The instant criminal appeal so far appellant no. 1, Dildar Hussain is concerned is abated and the present appeal is only pressed on behalf of appellant no. 2 Arsad Hussain, appellant no. 3 Abul Hussain and appellant no. 4 Tunnu @ Mister Mian, who have been convicted under Section 307/149 of the Indian Penal Code and under section 147 of the Indian Penal Code.
3. Brief facts as stated in the prosecution case is that on 26.10.1984 at around 8.30 a.m, in the village Marua Baran Bahiyar within P.S. Godda town, District Godda, accused persons armed with sword, bhala, barchha formed unlawful assembly for committing riot and on the order of Dildar Hussain to finish the informant and others. Dildar Hussain having barchha in his hand assaulted Panchu Mian (informant) on his left arm due to which, Panchu Mian sustained bleeding injury. Arsad Hussain, Abul Hussai and Tunnu @ Mister Mian assaulted Panchu Mian on his right shoulder and head, when Shamim Mian, nephew of the informant came for rescue Panchu Mian, he was also assaulted by Dildar Hussain by barchha and Raju Mian by sword and rest three accused persons (appellants) by lathi. It is alleged that on brawl, Md. Ibrahim, Ahmad Mian, Ulfat Mian and Khutul Tiwari came for rescue but in the mean time, accused persons fled away.
It is stated by the prosecution, that Shamim and Panchu Mian had came there to see their paddy crop, when Ibrahim and others came there. Dildar snatched wristwatch of the informant (Panchu Mian) and Raju Mian has taken money from his pocket. The informant has further stated, that they were brought to the police station, from there they have been sent to the hospital for treatment.
Shamim Mian, nephew of the informant who has sustained injury because of the barchha and sword has been referred to Bhagalpur Government hospital by the doctor, and Panchu Mian has been treated at Godda Hospital. The informant has claimed that the accused persons have tried to take away their crops standing in the field.
3On the basis of the written report submitted by Md. Panchu, the police registered Godda town P.S. Case No. 205 of 1984 under Section 147, 148, 149, 447, 323, 324, 307 and 379 of the Indian Penal Code against five accused persons and after investigation submitted charge sheet vide no. 138 of 1984 dated 27.12.1984 under Section 147, 148, 149, 447, 323, 324, 307/379 of the Indian Penal Code.
4. The cognizance of the offence has been taken vide order dated 22.01.1985 and the case has been committed to the court of Sessions vide notification dated 08.06.1985. The charge has been framed against all five accused persons on 24.06.1994 under Section 147, 307/149 and 148 of the Indian Penal Code. Dildar Hussain and Raju Mian (both now dead), against them charge has also been framed under Section 379 of the Indian Penal Code and Abul Hussain and Tunnu @ Mister Mian and Arsad Hussain have been charged under Section 323 of the Indian Penal Code, which was framed on 24.06.1994. Accused persons/appellants pleaded their innocence and thus, they were put on trial.
5. The prosecution has examined eleven prosecution witnesses namely Md. Ulfat as P.W. 1, Ahmad Mian as P.W. 2, Bhagwan Prasad Tiwari as P.W. 3, Ashwani Kumar Dubey as P.W. 4, Md. Shamim (injured of the case) as P.W.5, Dr. Vijay Kumar Bhagat, who has initially examined Panchu and Shamim at Godda Sadar Hospital, has been examined as P.W. 6, Md. Panchu (informant of the case) as P.W. 7, Md. Ibrahim as P.W. 8, Siya Ram Sharma (Sub-inspector), who has submitted chargesheet as P.W.9, Dr. Suresh Bramhachari, who has treated Shamim at Bhagalpur Hospital as P.W. 10 and Jagdish Yadav @ Manjhi as P.W. 11.
6. The prosecution has also proved the injury report of Md. Panchu as Exhibit 1, injury report of Md. Shamim as Exhibit 1/1, fardbeyan and signature of Md. Panchu as Exhibit 2, signature of Md. Ibrahim on fardbeyan as Exhibit 2/1, signature of Shamim on fardbeyan recorded by Sub-Inspector S. Singh of Bhagalpur Medical College Hospital police station on 28.10.1984 as Exhibit 2/2 and signature of Md. Ulfat on the same fardbeyan as Exhibit 2/3 and injury report of Md. Shamim as Exhibit ½, issued by Medical Officer, Bhagalpur.
After closure of the prosecution evidence, the appellants have been examined under Section 313 Cr. P.C. on 30.04.2001 and defence has also examined one defence witness and also exhibited a number of documents 4 from Exhibit- A to D/2 to prove their false implications due to the enmity prevailing between the parties and the result of the counter case filed by the appellants.
7. Learned counsel for the appellants, Mr. Lakhan Chandra Roy has submitted, that non-examination of the Investigating Officer has caused prejudice to him, as the appellants have not given a fair opportunity to cross- examine, the Investigating Officer with respect to case and counter case, manner of occurrence and place of occurrence. Learned counsel for the appellants have further submitted, that there is a minor fight between them and none of the injuries found on Shamim, will go under the definition of grievous hurt, as envisaged in Section 320 of the Indian Penal Code. Learned counsel has further submitted, that so far fracture is concerned, it is on the finger. Learned counsel for the appellants has further submitted that mens rea is lacking to constitute offence under Section 307 of the Indian Penal Code and as such conviction under Section 307/149 IPC is not sustainable in the eyes of law. Learned counsel for the appellants has fairly submitted, that there is a minor contradiction in the deposition of the witnesses but that will not go to the root of the prosecution case and has fairly submitted, that appellants may be released on Probation of Offenders Act, as the parties are agnates and the dispute is with regard to the crop standing in the field.
8. Learned counsel for the State, Mrs. Niki Sinha, Additional Public Prosecutor assisted by learned counsel for the informant Mr. Manoj Kumar Sah has submitted, that it is a case, where the learned Trial court has rightly convicted the appellants under Section 307/149 of the Indian Penal Code and under Section 147 of the Indian Penal Code and awarded rigorous imprisonment for five years and rigorous imprisonment for one year under Section 307/149 of the Indian Penal Code and Section 147 of the Indian Penal Code respectively, since the court below has convicted the appellants. Learned counsel for the State, Mrs. Niki Sinha, Additional Public Prosecutor, has further submitted, that the main accused Raju Mian, who was having sword in his hand had assaulted Panchu (informant) and his nephew, Shamim causing some injuries, but said Raju Mian has died during pendency of the trial and thus the case against him, has been dropped vide order dated 06.08.2003. So far appellant Dildar Hussain is concerned, who died during pendency of the appeal i.e. on 17.07.2007 thus appeal preferred by Dildar Hussain is abetted and as such only these three appellants who have been convicted under 5 Section 307/149 of the Indian Penal Code and 147 of the Indian Penal Code have rightly been convicted by the learned Trial Court.
9. Learned counsel for the appellants has further submitted, that since the ingredient under Section 307 is lacking, as there was no involvement for the appellants to kill the informant, if they had an intention to kill the victim, they would have done so and as such, conviction under Section 307/149 is not sustainable in the eyes of law.
10. Learned Counsel for the State, Mrs. Niki Sinha, Additional Public Prosecutor assisted by learned counsel for the informant, Mr. Manoj Kumar Sah has vehemently argued in support of the impugned judgment but they have not disputed the case and counter case between the parties, which has resulted in acquittal of the accused of the counter case, on the basis of the compromise, filed by the informant of the counter case, Dildar Hussain (original appellant no.1).Learned counsel for the State as well as learned counsel for the informant could not satisfy this court on the basis of materials on record with respect to the ingredient constituting an offence committed under Section 307 of the Indian Penal Code.
Learned counsel for the State, Mrs. Niki Sinha, Additional Public Prosecutor, assisted by learned counsel for the informant, Mr. Manoj Kumar Sah has not been able to satisfy this court on the basis of the material brought on record with regard to the ingredients of Section 307/149 of the Indian Penal Code is concerned as the injury found on the person of Shamim Mian is not grievous in nature as envisaged in Section 320 of the Indian Penal Code and the injury of fracture which have been found on Panchu Mian is at the ring finger of his left hand and not on vital part of body.
11. Heard learned counsel for the appellant, Mr. Lakhan Chandra Roy as well as Mrs. Niki Sinha, Additional Public Prosecutor for the State and Mr. Manoj Kumar Sah, learned counsel for the informant and also perused the record, F.I.R., evidences of both the sides and the oral and documentary evidences of both the sides, this court is of the opinion that ingredient under Section 307 is missing in the case, as his injury found on Shamim Mian is grievous as contemplated under Section 320 of the Indian Penal Code and injury of fracture of ring finger of Panchu Mian is not on vital parts of body. There is also no evidence as to why appellants did not killed Shamim or Panchu Mian, had they have such intentions. The learned Trial Court is justified in convicting the appellants but the conviction under Section 307/149 6 is non-sustainable in the eyes of law, as the grievous hurt as envisaged under Section 320 of the Indian Penal Code is completely missing. So far injured, Shamim Mian is concerned and the fracture of the ring finger of Panchu Mian will not bring the case for consideration of 307 of the Indian Penal Code at best the case can be kept under Section 324 of the Indian Penal code. Apart from this, there is admitted land dispute between the parties and both sides have fight and filed case and counter case. The case filed by the appellants, have resulted in acquittal because of compromise between the parties and the appellants have to face fine of Rs. 500/- each by the learned Trial Court for bringing such case against the present prosecution party. Thus this Court is of the opinion that appellants are guilty of committing the offence punishable under Section 324/149 and 147 of the Indian Penal Code. No finding with respect to Section 323 of the Indian Penal Code has been passed by the Trial Court. Since the learned Trial Court has not discussed the charge under Section 323 of the Indian Penal Code as the appellants have been convicted under Section 307/149 but by this court the appellant has been convicted for offence under Section 324/149 and as such no further discussion is being made with respect to 323 of the Indian Penal Code. The appellants have also been convicted under Section 147 of the Indian Penal Code. This court after perusing the evidence is modifying the sentence of conviction under Section 307/149 to 324/149 IPC and modifying the punishment from rigorous imprisonment of five years to period already undergone but subject to the condition that each appellants will pay a fine of Rs. 15,000/- each, within a period of eight weeks from today failing which the appellants shall undergo rigorous imprisonment for 2 years under Section 324/149 of the Indian Penal Code is concerned and so far punishment under Section 147 of the Indian Penal Code is concerned the same is modified as period already undergone as the appellants have remained in custody for a period of approximately seven months and as such under Section 147 of the Indian Penal Code, the learned Trial Court has granted the punishment of one year rigorous imprisonment is modified to the period already undergone.
12. With these modifications in conviction from 307/149 to 324/129 IPC and modification of sentence as stated above, this criminal appeal is partly allowed with modification. The money shall be deposited within eight weeks before the learned Trial Court. The learned Trial court is directed to issue notice to both the injured Panchu Mian and Shamim Mian and distribute the 7 50 % of the said amount in equal proportion between Panchu Mian and Shamim Mian.
13. Let it be made clear that if the appellants fails to deposit the said amount within the said period of eight weeks from today, the learned Trial Court is directed to take all coercive steps against the appellants for serving out their sentence of two years as modified by this Hon'ble Court.
14. In the result, the judgment of conviction dated 12.12.2003 and order of sentence dated 17.12.2003 passed by 4th Additional Sessions Judge, (Fast Track Court No. 1), Godda in Sessions Case No. 217/86/18/2002 arising out of Godda town P.S. Case No. 205 of 1984, consequent G.R. No. 692/77 & T.R. No. 353/81 is partly allowed with modification.
15. Let the lower court record be sent along with judgment of this court for necessary action.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 03.05.2018 Pallavi/