Jharkhand High Court
Aslam Mian @ Md. Alam vs The State Of Jharkhand on 20 August, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 70 of 2004
.....
(Against the judgment of conviction and order of sentence, both dated 16.12.2003, passed by learned Additional Sessions Judge, Fast Track Court No. IV, Giridih, in Sessions Trial No. 144 of 2001).
1. Aslam Mian @ Md. Alam, son of Sakur Mian
2. Elahi Mian @ Md. Elahi Mian, son of Late Mahadi Mian.
3. Afzal Mian @ Md. Afzal, son of Idrish Mian
4. Latif Mian @ Md. Latif, son of Sakur Mian
5. Jumman Mian @ Md. Jumman Mian, son of Late Mahadi Mian
6. Idrish Mian @ Md. Idrish Mian, son of Late Mahadi Mian
7. Ajhar Mian @ Md. Izhar, son of Elahi Mian
8. Sultan Mian @ Md. Sultan, son of Sakur Mian
9. Kurban Mian @ Md. Kurban, son of Sakur Mian
10. Kamruddin Mian @ Md. Kamruddin, son of Jumman Mian
11. Abdul Sakur, son of Late Mahadi Mian.
All residents of village Galwati, P.S. Dhanwar, Giridih, District- Giridih (Jharkhand).
..... Appellants
Versus
The State of Jharkhand .... Respondent
------
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant (s) : Mr. Mahesh Tewari, Advocate
Mr. K.N. Sahay, Advocate
Mr. Birendra Kumar, Amicus Curiae
For the State : Mr. Mukesh Kumar, Additional Public Prosecutor
------
By Court:- The present Criminal Appeal has been preferred against the
judgment of conviction and order of sentence, both dated 16.12.2003, passed by learned Additional Sessions Judge, Fast Track Court No. IV, Giridih, in Sessions Trial No. 144 of 2001, whereby the learned Trial Court has acquitted all the accused persons of charge under Sections 307, 342 and 337 of the Indian Penal Code but has convicted all the accused persons for the offence committed and punishable under Sections 326/149/147 of the Indian Penal Code. Appellants/Accused, Abdul Shakur and Idrish Mian have been awarded rigorous imprisonment for two years with a fine of Rs. 500/- each for the offence committed and punishable under Sections 326/149 of the Indian Penal Code and in default in payment of fine, further rigorous imprisonment for one month. Further, the appellant/accused Jumman Mian (who died during pendency of the appeal and his case has been abated), considering his age, has been awarded a fine of Rs. 1000/- and in default of payment of fine, simple imprisonment for two months, for the offence 2 committed and punishable under Sections 326/149 of the Indian Penal Code. The rest of the appellant/accused persons have been awarded simple imprisonment for two years for the offence committed and punishable under Sections 326/ 149 of the Indian Penal Code. Further, for the charge and offence committed and punishable under Section 147 of the Indian Penal Code, all the appellants/accused except Jumman Mian, have been awarded sentence to undergo simple imprisonment for three months. All the sentences are directed to run concurrently. For, this charge, Jumman Mian is ordered to pay Rs. 500 as fine, and in default of payment of fine, to undergo simple imprisonment for fifteen days. All the sentences are directed to run concurrently.
2. The prosecution case is based upon the written report submitted by Md. Ibrahim (P.W. 2), before the Officer-in-Charge, Dhanwar Police Station, Giridih on 31.08.2000, alleging therein that a panchayati was held between the parties and pursuant to the panchayati, when Amin was measuring the land, all the named accused persons Abdul Shakur, Idrish Mian, Illahi Mian, Jumman Mian, Latif Mian, Kurban Mian, Sultan Mian, Alam Mian, Afzal Mian, Izhar Mian and Kamruddin Mian, came with deadly weapons such as sword, bhalla, knife, tangi, lathi and rod and surrounded the prosecution party and assaulted indiscriminately. Abdul Shakur has assaulted Islam Mian on his head by sword due to which Islam Mian fell down on the ground, Idrish Mian has also assaulted Islam Mian by bhalla on the cheek. Afzal Mian assaulted Abdul Kiyum by means of sword causing him injury due to that he fell down on the ground. Kamruddin Mian assaulted Nizamuddin by means of tangi, due to which he fell down on the ground. Jumman Mian pelted brick upon the informant Md. Ibrahim and other accused persons having lathi, danda, brick and stone started assaulting the prosecution party.
3. On the basis of the written report of the informant, police has registered Dhanwar P.S. Case No. 119 of 2000, dated 31.08.2000, under Sections 147, 148, 149, 342, 323, 324, 307 and 337 of the Indian Penal Code.
4. After investigation, the police submitted charge sheet vide no. 282 of 2000, dated 31.10.2000, against all the accused persons, under Sections 147, 148, 149, 342, 323, 337, 324, 307/326 of the Indian Penal Code.
35. The cognizance of the offence has been taken vide order dated 09.11.2000 and the case has been committed to the Court of Sessions vide order dated 10.05.2001.
6. The charge has been framed on 24.01.2001, against all the accused persons, under Sections 147, 149, 342, 307/149 and 337 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial.
7. The prosecution, to prove its case, has examined altogether five witnesses apart from the documentary evidence up to Exhibit- 6 series. Md. Islam, one of the injured of the case, has been examined as P.W. 1, Ibrahim Mian, informant and injured of the case has been examined as P.W. 2, Abdul Qayum, injured, has been examined as P.W. 3, Dr. Krishna Kumar, Medical Officer, who has examined the victims and proved their injury reports, has been examined as P.W. 4, Narayan Yadav, formal witness, who have proved the formal F.I.R. written in the handwriting of Mr. Arun Kumar Singh, Officer-in-charge, Dhanwar Police Station has been examined as P.W. 5.
Written report submitted by the informant has been proved and marked as Exhibit- 1, injury report of Islam Mian has been proved and marked as Exhibit- 2, X-Ray rejoinder of Islam Mian has been proved and marked as Exhibit- 2/A, Injury report of Abdul Quayum has been proved and marked as Exhibit- 3, X-Ray rejoinder of Abdul Quayum has been proved and marked as Exhibit- 3/A, injury report of Md. Ibrahim has been proved and marked as Exhibit- 4, X-Ray rejoinder of Md. Ibrahim has been proved and marked as Exhibit- 4/A and injury report of Md. Nizamuddin has been proved and marked as Exhibit- 5.
8. After closure of the prosecution evidence, the statement of the accused/appellants were recorded under Section 313 Cr.P.C., on 31.03.2003. Appellants have pleaded, that the allegations are false, they are innocent and the prosecution parties have assaulted them, for which they have filed a case. To protect themselves from that case, the prosecution has filed the present case against the appellants with ulterior motive.
9. The defence has also examined four witnesses. Shakaldeo Yadav, a formal witness and advocate clerk has been examined as D.W. 1, he has proved the formal F.I.R. written in the handwriting of the Officer-in-Charge 4 and marked as Exhibits C and D, Md. Nizamuddin, another advocate clerk being a formal witness has been examined as D.W. 2 and has proved the report of the Circle Officer in Case No. 469 of 2000 as Exhibit- E, Niranjan Prasad, another Advocate Clerk and a formal witness has been examined as D.W. 3, who has proved the injury report of Md. Idrish and Md. Latif, issued by Dr. Krishna Kumar as Exhibits G and G/1 and the medical requisition issued by the A.S.I, Lal Mohar to Md. Idrish and Md. Latif as Exhibits H and H/1 and Abdul Sakur, injured of the case has been examined as D.W. 4, who has stated during cross-examination in paragraph- 7 that in the alleged occurrence, both parties have filed case of assault as they have also sustained injuries, C.C. of order passed by S.D.M, Giridih in case No. 469/2000 has been proved and marked as Exhibit- A and C.C. of notice under Section 144 Cr.P.C. in case No. 469/2000 has been proved and marked as Exhibit- B.
10. After hearing the parties and on the basis of material available on record, the learned Trial Court has passed the impugned judgment of conviction and order of sentence.
Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence passed by the learned Trial Court, these appellants have preferred the present criminal appeal, before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence.
11. Heard, learned counsels for the appellants, Mr. Mahesh Tewari assisted by Mr. K.N. Sahay, Advocates and Mr. Birendra Kumar, Amicus Curiae. Learned counsels for the appellants have submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that the investigating officer of the case has not been examined nor the case and counter case which has been registered as Dhanwar P.S. Case No. 119 of 2000 and Dhanwar P.S. Case No. 120 of 2000 filed against each other, have been jointly tried in view of judgments as reported in 2003 (9) SCC 426 in case of State of Madhya Pradesh Versus Mishrilal (Dead) & Ors. and 1990 (Supp) SCC 145 in case of Nathi Lal versus State of Uttar Pradesh.
5Learned counsels for the appellants have further submitted that in the counter-case which was registered as Dhanwar P.S. Case No. 120 of 2000, these prosecution parties being the accused in that case have been acquitted by the learned Trial Court in view of the fact that the parties have entered into a compromise. Learned counsels for the appellants have further submitted that, Ibrahim Mian (P.W. 2), informant of the case has admitted in paragraphs- 13 and 14 of his cross-examination that there is a case and counter-case between the parties and Abdul Qayum (P.W. 3), one of the victim has also admitted the same fact in paragraph- 9 of his cross-examination about a case and counter-case. Learned counsels for the appellants have further submitted that the injury report of the accused persons examined by the doctor, P.W. 4 (Dr. Krishna Kumar) has already been brought on record as Exhibits- G and G/1 and the police requisitions as Exhibits H and H/1, with regard to Idrish and Latif has been exhibited in the present case without any objection from the prosecution side issued by the same police officer and as such, in view of the judgment as reported in (2002) 7 SCC 210 in the case of Subramani & Others Vs. State of Tamil Nadu and the reasoned judgment as reported in 2018 AIISCR (Crl) 362 in case of State of Madhya Pradesh Vs. Ramniwas, the Hon'ble Supreme Court has held that:- "Prosecution has a duty to explain the injury on the accused, though the injuries were simple in nature, does not relieve the prosecution of its obligation, to explain injury on the accused and Court can draw inference as prosecution has not drawn the true version of the case".
Learned counsels for the appellants have further submitted that in view of the facts that, there is a case and counter-case between the parties and in the counter-case, because of the compromise between the parties, the present prosecution parties have been acquitted and the prosecution witnesses of the present case namely Ibrahim Mian (P.W. 2) and Abdul Qayum (P.W. 3), injured of the case, have admitted about the filing of the counter case and the medical evidence, which has been proved as Exhibits- G and G/1 and the police requisitions, as Exhibits- H and H/1, which have been admitted in this case without objection from the prosecution parties, the appellants are entitled for acquittal in view of the 6 judgment of the Hon'ble Supreme Court as reported in 2018 AIISCR (Crl) 362 in case of State of Madhya Pradesh Vs. Ramniwas, as the prosecution has not come up with a true version of the case. Learned counsels for the appellants have also submitted that there is a free fight between the parties, which has been started suddenly, while the Amin was preparing his report. There was no previous planning of commission of such offence and it is a free fight between the parties, in which both sides have filed case and sustained injury and as such, in view of the judgment passed by the Hon'ble Supreme Court as reported in 2018 AIISCR (Crl) 362 in case of State of Madhya Pradesh Vs. Ramniwas, the appellants may be acquitted as the present prosecution parties have been acquitted, by the learned Trial Court in the counter case.
12. Heard, learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record. The case and counter-case has not been tried together and it was the duty of the defence to bring this fact to the learned Trial Court. Now, though, the prosecution parties have been acquitted in the counter-case by the learned Trial Court, on the basis of compromise, there are sufficient material to prove that present appellants are the aggressors of the occurrence and as such, the learned Trial Court has rightly, convicted the appellants.
13. Heard, learned counsels for the appellants, Mr. Mahesh Tewari assisted by Mr. K.N. Sahay, Advocates and Mr. Birendra Kumar, Amicus Curiae and learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. This Court has perused the evidence on record, i.e. F.I.R., framing of charge, evidence of five prosecution witnesses, Exhibits- up to 6 on behalf of the prosecution, the statement of the appellants recorded under Section 313 Cr.P.C., the defence witnesses up to D.W. 4 and the defence exhibits and the impugned judgment of conviction and order of sentence, it appears that both the parties have filed case and counter-case against each other for the alleged occurrence and both the parties have sustained injuries which will be apparent from the Exhibits- 2 to Exhibit- 5 adduced on behalf of prosecution and Exhibits- G and G/1 and H and H/1 adduced on behalf of 7 the defence. The injury reports have been issued by the doctor, on the requisition by the same police officer and the defence injury report has been exhibited in this case without any objection from the prosecution parties. Considering the above facts, it is apparent that both sides have sustained injury. From perusal of the evidence, it appears that the prosecution parties have not stated about the injury caused upon the appellants/accused although while examining in the court, the informant (P.W. 2) in paragraph- 13 and 14 and injured P.W. 3 in paragraph- 9 have stated that, the accused have sustained injuries.
Under the aforesaid circumstances and in view of the judgments as reported in (2002) 7 SCC 210 in the case of Subramani & Others Vs. State of Tamil Nadu and the judgment as reported in 2018 AIISCR (Crl) 362 in case of State of Madhya Pradesh Vs. Ramniwas, this Court is of the view that the appellants deserve to be acquitted as the prosecution has not come up with the true version of the occurrence. This Court, is further of the opinion that there is a free fight between the parties and one case which is the counter-case has been disposed of in terms of compromise reached between the parties by acquitting the persons, who are the prosecution in the present case. Since there was a free fight between the parties and counter case has also been filed, it will be in the interest of justice to acquit the present appellants.
Considering the compromise between the parties, although Section 326 of the Indian Penal Code is not compoundable, but taking the facts of the case, this Court is of the opinion that prosecution has not brought the true version of the incident, as such, benefit of doubt may be given to the appellants.
14. In the result, the impugned judgment of conviction and order of sentence, both dated 16.12.2003, passed by learned Additional Sessions Judge, Fast Track Court No. IV, Giridih, in Sessions Trial No. 144 of 2001, in connection with Dhanwar P.S. Case No. 119 of 2000, corresponding to G. R. Case No. 1189 of 2000, is hereby set aside, and all these present appellants are acquitted of the charges and conviction awarded to them, by giving benefit of doubt.
15. The appellants, who are on bail, are discharged from the liabilities 8 of their bail bonds.
16. Accordingly, the present criminal appeal is allowed.
17. Before parting with the judgment, this Court appreciates the assistance rendered by Mr. Birendra Kumar, learned Amicus Curiae, who seems to be a hard working advocate with his legal acumen.
18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 20.08.2018 Pallavi/