Jharkhand High Court
Hanif Ansari & Ors. vs State Of Jharkhand on 21 September, 2010
Author: Pradeep Kumar
Bench: Pradeep Kumar
1
CRIMINAL APPEAL (SJ) No. 37 of 2003
Against the impugned judgment of conviction and order of sentence dated 28.11.2002
passed in S.T. No. 153 of 1997 by Shri R. K. Srivastava, Additional Sessions Judge,FTC3rd
Bokaro.
1. Hanif Ansari
2. Tikala Ansari
3. Liyakat Ansari
4. Sirajuddin Ansari
5. Abdul Ansari
6. Kashim Ansari
7. Rabbul Ansari
8. Gulam Ansari .... .... Appellants
Versus
The State of Jharkhand .... .... Respondent
For the Appellants : Mr. R. C. P. Sah, Adv.
For the Respondent (State) : Mrs. Sadhna Kumar, A.P.P.
P R E S E N T
THE HON'BLE MR JUSTICE PRADEEP KUMAR
By Court: Heard the learned counsel for the appellants and the learned counsel for
the state.
2. The instant appeal is directed against the judgment of conviction and order of sentence dated 28.11.2002 passed in S.T. No. 153 of 1997 by Shri R. K. Srivastava, Additional Sessions Judge, FTC3rd Bokaro, by which judgment he found the appellant no. 1(Hanif Ansari) guilty under Section 148 and 324 of the Indian Penal Code and was sentenced him to R.I. for two years under Section 324 of Indian Penal Code and R.I for two years under Section 148 of the Indian Penal Code and directed that both sentences will run concurrently and the appellant nos. 2 to 8 found guilty under Sections 147 and 323 of the Indian Penal Code and they are released on probation on executing a bond of Rs. 10,000/ with one sureties for a period of one year as provided under Section 4(1) of the Probation of Offender Act, 1958.
4. It is submitted by the learned counsel for the appellants that the appellants and the informant both are gotias and due to land disputes this occurrence took place. Moreover, since the prosecution case failed to examine the doctor and proved no injury report that what type of injury suffered by the informant, P.W.3 Sikander Ansari where the injuries were caused by iron rod or by something else. In absence of any medical evidence, conviction of the appellant Hanif Ansari under Sections 324 and 148 of the Indian Penal Code is bad in law and fit to be set aside.
5. On the other hand, learned counsel for the State opposed the prayer but 2 admitted that there is no medical injury proved by any doctor.
6. After hearing both the parties and going through the evidences, I find that prosecution case was started on the basis of fardbeyan given by the informant of the case P.W.3 Sikander Ansari stating therein that on 20.05.1996 at about 5.00A.M. He was going to perform duty by his motorcycle in the plant and when he reached near the bush eight to ten persons came out from the bush and surrounded him and stopped his motorcycle and assaulted him by hand, rod and danda. On hulla, villagers came there and took him to the hospital.
7. On the basis of the said fardbeyan, police registered a case under Sections 147, 148, 149, 323, 325 and 307 of the Indian Penal Code and after investigation, police submitted chargesheet in the case. Since, the case was exclusively triable by the court of Sessions, after taking cognizance learned Chief Judicial Magistrate committed the case to the court of Sessions and subsequently, the case was tried by learned Additional Sessions Judge, FTC3rd Bokaro, who found the appellants guilty as aforesaid.
8. It appears that in the course of the trial, the prosecution has examined as many as four witnesses.
P.W. 1, Farid Ansari P.W. 2. Habib Ansari P.W. 3 Sikander Ansari P.W. 4. Ram Ikbal Prasad yadav P.W. 3, Sikander Ansari has supported the prosecution case and stated that he was assaulted by the appellants while he was going to attain his duty by his motorcycle registration no. BEV 8691. When he reached 200 metres eastwest from his house near the bush eight to ten persons came out from the bush. He stated that Hanif Ansari assaulted him with intention to commit murder by the iron rod on his head. P.W. 1, 2 and 4 have also stated the same.
It is important to note that although two main eyewitnesses also admitted that they came to the place of occurrence on hulla raised by the informant.
P.W. 2. Habib Ansari, is also chance witnesses, has stated that in the moring at 5 A.M. when he was going to ease and he has heard hulla he went there but he had not seen that informant was being assaulted by these appellants.
9. Thus, I find that the main evidence is of the informant, who was supported by other all chance witnesses. He also admitted that all the other witnesses are his relatives, who came to the place of occurrence on his hulla. Since, neither medical report is proved nor any doctor has been examined to show at what type of injury was received by P.W. 3 Sikander Ansari, where the injuries were caused by iron rod or by something else. In the absence of medical 3 report, the conviction of appellant no. 1 Hanif Ansari under Sections 324/148 of the Indian Penal Code is bad in law. Accordingly, the conviction of the appellant Hanif Ansari is altered to one under Section 323/147 of the Indian Penal Code and since, the case between gotias and he was first offender and there was no previous history of any crime against the appellant, he is also given benefit of the provisions of Section 4(1) of the Probation of Offender Act along with other appellants and he is directed to furnish bond of Rs. 10,000/ with two sureties with period peace of one year as provided under Section 4(1) of the Probation of Offenders Act 1958.
10. With the aforesaid alteration in the conviction and sentence of appellant no. 1, the appeal is allowed in part.
[Pradeep Kumar, J] Jharkhand High Court, Ranchi 21st of September, 2010 Kamlesh/NAFR