Jharkhand High Court
Safique Khan vs The State Of Jharkhand on 26 February, 2020
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (D.B.) No. 99 of 2002
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(Against the judgment of conviction dated 30.01.2002 and the order
of sentence dated 31.01.2002 passed by the learned First Additional
District & Sessions Judge, Garhwa in Sessions Case No. 426 of
1983/Trial No. 59 of 2001)
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1. Safique Khan, S/o- late Asim Khan of village-Baligrah
2. Hussain Mian @ Hussain Sk., S/o- Gafoor Mian
3. Mohamdin Mian @ Mohamdin Ansari, S/o- Gafoor Mian
4. Ali Kasim @ Telha Mian, S/o- Nabi Mian
5. Somaru Sheikh, S/o- Nabi Mian
All resident of village-Nawadih, PS and District-Garhwa
..... Appellants
Versus
The State of Jharkhand ...... Respondent
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants : Mr. Hemant Kumar Shikarwar, Advocate
Mr. Prem Mardi, Amicus
For the State : Mr. Hardeo Prasad Singh, APP
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JUDGEMENT
Per, Shree Chandrashekhar, J. Dated: 26th February, 2020 Oral Order A First Information Report was lodged against unknown. In his fardbeyan which was recorded on 30.09.1979, the informant has stated that in the intervening night of 29/30.09.1979 he was sleeping in the house of August Pandey. After the midnight he asked him to release the buffalos, however, he said that it was still dark and he would set the buffalos for field after sometime. In the meantime 2 2-3 persons came there and threatening him asked to sit there. August Pandey who by that time got up was assaulted by lathi by the accused persons due to which he had died. The informant ran to his house and told his brother that August Pandey has been killed by 2-3 persons whereupon his brother Jagdish Ram informed the villagers. He has claimed that August Pandey has no enmity with any villager however he has expressed an apprehension that the villagers of Basaha were on inimical terms with August Pandey. Along with the chowkidar Laxman Manjhi, he has gone to the police station and lodged the information.
2. After the investigation a charge-sheet was submitted against Hussain Mian @ Hussain Sk. and Mahamadin Mian @ Mohamidin Ansari under section 302 of the Indian Penal Code. A Protest Petition was filed by son of the deceased Murari Pandey. After hearing the Protest Petition along with Final Form, charge under section 396 of the Indian Penal Code was framed against Hussain Mian, Ali Kasim @ Telha, Somaru Sheikh, Rasul Mian, Mohammadin Mian, Safique Kha and Keshwar Mahto.
3. Keshwar Mahto has preferred Criminal Appeal (DB) No. 95 of 2002 which on his death during pendency of the criminal appeal has been dismissed as abated vide order dated 09.07.2019.
4. During pendency of this criminal appeal the appellant, namely, Rasul Mian had died and, accordingly, this criminal appeal qua him has abated vide order dated 22.07.2019.
5. The prosecution has projected P.W.1 and P.W.2 as the eye-witnesses.
6. August Pandey has met with a homicidal death is proved from the medical evidence. Dr. Ramnaresh Singh Diwakar-P.W.6 has proved the postmortem report which was tendered in evidence without objection. The postmortem report reveals the following injuries on August Pandey:
3(i) Incised wound 3"x ¼" scalp deep
(ii) Incised wound ½" x 1/6" x 1/6"
(iii) Abrasion left shoulder
(iv) Abrasion left arm
(v) Contusion back of chest
(vi) Abrasion
7. From the postmortem report, we gather that Dr. S. P. Sinha who has conducted the postmortem examination has rendered an opinion that the injuries were ante-mortem in nature. The postmortem report records that August Pandey had suffered injuries on his shoulder, arm and back of the chest which were caused by hard and blunt substance. The doctor has opined that the cause of death was shock and hemorrhage and the injuries found on August Pandey were sufficient in ordinary course to cause his death.
8. P.W. 1 who is nephew of the deceased has deposed in the court that at about 3:00 a.m in the night on hearing hulla of daku daku he ran to the house of his uncle with Ayodhya Ram, Hira Ram and Basant Pandey. There he saw that 10-15 persons were beating his uncle. Amongst them he has identified Safique Mian, Somaru Mian, Ali Kasim Mian, Rasul Mian and Mohammadin Mian. They had asked Ishwar Ram to sit quiet and Keshwar Mahto assaulted his uncle with spear on his head. He claims that he has raised hulla and thereafter the accused persons ran away towards southern side, but before that Keshwar Mahto again assaulted his uncle on his head. Thereafter Manmati Kunwar and Baijnath Pandey came there. Manmati Kunwar informed him that the accused persons have taken away a box containing cloths and Rs. 5,000/- in cash from her house. Manmati Kunwar who is sister-in-law of the deceased has deposed in the court that on hearing hulla of daku daku she had gone to the house of August Pandey where she has seen that about 25 persons were assaulting him. She has identified the appellants as part of the assembly of the accused persons. She has further stated that the 4 accused persons then came to her house and took away the box containing cloths and Rs. 5,000/-. She has also stated about Keshwar Mahto assaulting August Pandey with spear on his head. P.W. 3 who is son of the deceased is not an eye-witness and he has got information about the incident from a person named Hulas. P.W. 4 who is the informant has reiterated his fardbeyan and deposed in the court that he did not identify the accused persons who had participated in the occurrence and P.W. 7 who is an inquest witness has deposed in the court that the inquest report was not prepared before him.
9. For constituting the offence under section 396 of the Indian Penal Code the prosecution must prove that in course of committing dacoity one of the accused persons has committed murder. Dacoity is defined under section 391 of the Indian Penal Code. It provides that when five or more persons conjointly commit or attempt to commit robbery or where the whole number of persons conjointly committing or attempting to commit robbery, the persons present and aiding such commission or attempt commit dacoity. Section 390 which defines robbery provides that in all robbery there is either theft or extortion.
10. From the evidence of P.W.1 and P.W.2 it is apparent that the foundational facts for constituting the offence of theft or extortion have not been spoken by them and while so, it must be held that the offence under section 396 of the Indian Penal Code has not been proved by the prosecution. The informant has stated that 2-3 persons have assaulted August Pandey with lathi. P.W.1 has spoken about 10-15 persons assaulting August Pandey whereas P.W.2 talks of about 25 persons participating in the occurrence. P.W.1, P.W.2 and P.W.3 have not stated that the accused persons were attempting to commit theft or extortion and in the process of committing or attempting to commit theft or extortion for that end put them under fear of instant death and killed August Pandey. Theft has not taken place in the 5 house of August Pandey. The case set-up by the prosecution against the appellants is thus not supported by the prosecution witnesses. According to P.W. 3 when the accused persons were fleeing away they have picked up box from her house; not from the house of August Pandey, which was containing cloths and Rs. 5,000/- in cash. There is another serious lacuna in the prosecution's case. P.W.2 has not given details of the stolen articles. During her examination in the court she has not stated about details of the stolen articles and during the investigation no article was seized by the investigating officer.
11. In the final analysis, we find that the prosecution has failed to establish the charge under section 396 of the Indian Penal Code against the appellants and, therefore, their conviction and sentence under section 396 of the Indian Penal Code are set-aside.
12. Mr. Hardeo Prasad Singh, the learned APP has contended that the prosecution has laid sufficient evidence to convict the appellants under section 302 of the Indian Penal Code.
13. Mr. Hemant Kumar Shikarwar, the learned counsel who was requested to argue this criminal appeal on behalf of the appellants and Mr. Prem Mardi, the learned Amicus have contended that no alternative charge under section 302 of the Indian Penal Code was framed against the appellants and, therefore, at this belated stage even if it is found that sufficient evidence was led by the prosecution the appellants cannot be convicted for the offence under section 302 of the Indian Penal Code.
14. Having examined the materials on record, we are satisfied that the prosecution has failed to lead cogent evidence to prove the charge under section 302 of the Indian Penal Code.
15. P.W. 1 and P.W.2 are not reliable and trustworthy witnesses. According to P.W. 1 when he heard hulla of daku daku he had gone to the house of his uncle, the deceased. But the informant does not say that P.W. 1 has arrived at the place of occurrence.
6P.W. 1 does not appear to be an eye-witness also for the reason that the informant does not say that on his information P.W.1 has arrived at the place of occurrence. In his fardbeyan the informant has stated that he has informed his brother Jagdish Ram who along with the chowkidar came to the place of occurrence. The chowkidar and brother of the informant have not been examined during the trial. P.W.1 has deposed in the court that he came to the house of his uncle with Ayodhya Ram, Hira Ram and Basant Pandey but these witnesses have not been examined by the prosecution and P.W.5 and P.W.7 who are the independent witnesses have not supported the prosecution's case against the appellants. Therefore, the inconsistencies in the testimony of P.W.1 and P.W.2 create a serious doubt on their claim that they have seen the occurrence. They are not reliable and trustworthy witnesses and while so, on the basis of their evidence the appellants cannot be convicted under section 302 of the Indian Penal Code.
16. Accordingly, the appellants, namely, Safique Khan, Hussain Mian @ Hussain Sk., Mohamdin Mian @ Mohamdin Ansari, Ali Kasim @ Telha Mian and Somaru Sheikh are acquitted of the criminal charge framed against them in Sessions Case No. 426 of 1983/ Trial No. 59 of 2001.
17. Mr. Hardeo Prasad Singh, the learned APP states that the appellants, above-named, are on bail.
18. Accordingly, the appellants, above-named, who are on bail, shall stand discharged of liability of the bail-bonds furnished by them.
19. Criminal Appeal (DB) No. 99 of 2002 is allowed.
20. I.A. No. 1751 of 2020 stands disposed of.
21. The Court appreciates the assistance rendered by Mr. Hemant Kumar Shikarwar, the learned counsel and Mr. Prem Mardi, the learned Amicus.
722. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amici as per Notification dated 23.11.2017.
23. Let lower-court records be transmitted to the court concerned, forthwith.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated : 26th February, 2020 Tanuj/ .A.F.R.