Jharkhand High Court
Sessions Judge vs The State Of Jharkhand on 23 April, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.190 of 2004
(Against the Judgment of conviction and order of sentence both dated
21.01.2004, passed in S.T. No.27 of 2001 by the learned 5 th Additional
Sessions Judge, Bermo at Tenughat.
Shafique Ansari, S/o Mazbul Ansari, R/o Telmunga, P.S.:-
Kasmar, District :- Bokaro. .... Appellant
Versus
The State of Jharkhand. ..... Respondent
PRESENT
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.....
For the Appellant : Mr. R.C.P. Sah, Advocate
Mr. C. A. Bardhan, Advocate
For the State : Mr. Suraj Verma, APP
.....
By Court:- Heard learned counsel for the appellant and learned counsel for
the State.
2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence both dated 21.01.2004, passed in S.T. No.27 of 2001 ((Kasmar P.S. Case No.65 of 2000 corresponding to G.R. No.985 of 2000) passed by the learned 5th Additional Sessions Judge, Bermo at Tenughat, whereby the sole appellant has been convicted by the learned trial court under Sections 307 and 325 of the Indian Penal Code, but acquitted for the charge under Section 452 of the Indian Pending Code. The learned trial court has awarded the appellant, Shafique Ansari rigorous imprisonment for 7 years and a fine of Rs.3,000/- for the charge under Section 307 of the Indian Penal Code and in default of payment of fine, to undergo simple imprisonment for one month and further to undergo rigorous imprisonment for 4 years and fine of Rs.2,000/- for offence punishable under Section 325 of the Indian Penal Code and in default to undergo simple imprisonment for one month. Both the sentences are directed to run concurrently.
Being aggrieved by the impugned judgment of conviction and order of sentence, the sole appellant preferred the instant appeal which has been admitted vide order dated 31.03.2004 by this Court and since then, the matter was pending.
3. The prosecution case is based upon on the basis of the written report submitted by Naeem Ansari (P.W.2), before the Officer-in- Charge, Kasmar Police Station in the District :- Bokaro on 16.12.2000 alleging therein that at around 3.30 p.m., his neighbour, Shafique Ansari (appellant) entered into his house with thick iron rod and was
-2- [Cr. Appeal (SJ) No.190 of 2004] in-search of his father, Habib Ansari, saying that he will kill Habib Mian and finish the litigation going on in between the parties. Upon this, the mother of the informant, Amna Bibi (P.W.5) asked Shafique Mian (appellant) why you have entered into the house as her husband has gone to Tenughat. Upon this, Safique Mian became furious and with intention to kill the mother of the informant tried to assault on head by iron-rod, but mother of the informant anyhow saved herself, by raising her left hand on the head. Informant's mother got fractured of her left hand because of the injury caused by iron rod. When the informant came for rescue of his mother, Shafique Ansari also assaulted him with an intention to kill, on his head, due to which his head got bleeding injury and he became unconscious and fell down in the courtyard. After sometime when he regained his consciousness, then he realized, that considering him to be dead, after neighbourers assembled there, Safique Ansari fled away. The informant has further stated that occurrence took place which was witnessed by his brother, Shabir Ansari (P.W.1), Kalim Ansari (P.W.3) and guest Raja Babu (P.W.4) and one Ainul Haque and others. The informant has alleged that the occurrence took place, as there is long enmity because of the land dispute and prior to that, case has also been instituted with respect to assault.
On the basis of the aforesaid written report of the informant, the Police instituted First Information Report being Kasmar P.S. Case No. 65 of 2000 (dated 16.12.2000) corresponding to G.R. No.985 of 2000 under Sections 452, 323, 324, 325 and 307 of the Indian Penal Code against the appellant/accused.
4. After investigation, the Police submitted charge-sheet against the appellant vide Charge-sheet No.61 of 2000 dated 31.12.2000 under Sections 452, 323, 324, 325 and 307 of the Indian Penal Code.
5. The cognizance of the offence has been taken on 06.01.2001 and the case has been committed to the Court of Sessions vide order dated 18.01.2001.
6. The charge has been framed against the appellant/accused under Sections 307, 325 and 451 of the Indian Penal Code on 09.05.2002.
7. The prosecution, in order to prove its case, has examined altogether 9 witnesses and also exhibited 5 documents and after recording the statement of the appellant under Section 313 of the Criminal Procedure Code on 03.06.2003.
-3- [Cr. Appeal (SJ) No.190 of 2004] The defence has also examined two defence witnesses and adduced a Certified copy of the charge-sheet of Kasmar P.S. Case 6 of 2000 as Exhibit-A.
8. Md. Shabir Ansari, brother of the informant of this case has been examined as P.W.1. This witness has stated that on 16.12.2000 at around 3.30 p.m., he was near his house when Safi Ansari came to the house of the informant, with a thick iron rod in his hand and enquired about his father, Habib Mian. When his mother disclosed that her husband has gone to Tenughat, upon which Safique Ansari gave a blow on the head of her mother with iron-rod, her mother caught-hold of the iron-rod due to which her mother sustained fracture of her left hand. This witness has further stated that when his brother Md. Naeem Ansari (informant) went for rescue to her mother, Safique Ansari also gave one blow by iron-rod on his head causing bleeding injury, but later on became senseless. This witness has further stated that Kalim Ansari, Raja Babu, Ainul Haque, his sister-in-law, Asuran Khatoon came there and witness was also standing there from the beginning. This witness has further stated, that Safique Ansari went away and because of the dispute of the landed property, the occurrence took place. His mother and brother were treated at Kasmar Block Hospital and his mother was also treated by a private doctor at Bokaro. During cross-examination, this witness has stated in Para-11 that no body from his Mohalla ever came. Safi left the spot immediately on reaching of this witness there, but subsequently this witness in Para-12 of his cross-examination has claimed that he has seen Safique Ansari assaulting his mother and brother from a distance of 10 yards. Subsequently this witness has said, that he first reached the spot and thereafter Kalim, Raja Babu reached there. This witness has further admitted, that he did not know as to how many cases have been instituted by them against Safique or by Safique against them. The fatal blow to the prosecution case came, when this witness has admitted in Para-16 of his cross-examination, that he has never disclosed about this occurrence to anybody before his statement recorded in the Court.
9. Mr. R.C.P. Sah, learned counsel appearing for the appellant has submitted that Investigating Officer of the case has not been examined in this case and as per the statement made by this witness in Para-16 of his cross-examination, this witness has admitted, that his statement
-4- [Cr. Appeal (SJ) No.190 of 2004] in the Court is the first statement meaning thereby, his statement under Section 161 of the Criminal Procedure Code has not been recorded. He has submitted that a serious prejudice has been caused to the appellant because of non-examination of the Investigating officer the appellant could not get an opportunity to cross-examine him regarding genuineness of the case, as this witness has admitted in Para-15 of his cross-examination, that he could not remember the case and the counter case between the parties and as such, in view of the medical report of the Doctor, where the Doctor has found such injury can caused to both the injured after falling from a height and as such, the appellant deserves to be acquitted from the charge levelled as against him.
10. Learned counsel for the appellants has further submitted that the learned trial court has acquitted the appellant from the charge under Section 452 of the Indian Penal Code. The State or the informant has never preferred any appeal against acquittal under Section 452 of the Indian Penal Code and as such, in view of non-establishment of the place of occurrence, coupled with the fact, that Investigating Officer has not been examined, the impugned judgment of conviction and order of sentence is fit to be set aside by this Hon'ble Court.
11. Mr. Suraj Verma, learned Additional Public Prosecutor appearing for the State has submitted that P.W.1 (Md. Shabir Ansari) is eye- witness to the occurrence and he has deposed that Safique Ansari has assaulted his mother and brother Naeem Ansari and no prejudice has been caused because of the non-examination of the Investigating Officer, but has fairly admitted, that there is contradiction in the contents as made in Paras 15 and 16 of his cross-examination.
12. Naeem Ansari, informant of the case has been examined as P.W.2. He is one of the victims of the case. This witness has stated that he was assaulted by Safique Ansari, by means of iron-rod on his head as he went to save his mother. This witness has further stated, that his mother got fracture of her hand and blood was coming out from her hand. This witness has stated that after sustaining injury, he fell down and thereafter Kalim and Sabir Ansari came there. Raja Babu and Ainu also came, but no neighbours had come. This witness has proved his written report, written and signed by him and the same has been proved and marked as Exhibit-1. During cross-examination, this witness has stated, that he regained his sense after some time at his
-5- [Cr. Appeal (SJ) No.190 of 2004] house, when all his brothers and Usman Mian were present. This witness has given a fatal blow to the prosecution case, in Para-14 of his cross-examination, when this witness has said, that when he became senseless till that time, no body came to the spot and the occurrence took place in the courtyard of his house. The place of occurrence has been defined in Para-16 of his cross-examination as north to the place of occurrence is his own house, South is road, East is Gafur Mian's house situated at a distance and west is Lalu Ghasi's house and Duryodhan Mahto's house is also situated. This witness has further given a fatal blow to the prosecution case, in Para-17 of his cross- examination, when this witness has admitted that his son Amir Ansari first went to the Police Station and Police came to the spot thereafter. This witness regained his sense after 15-20 minutes of the occurrence. This witness has further stated, that he was not examined by the Police at the spot, and his family members took him to the Police Station. This witness has further stated, that his clothes were stained with blood which was washed by him, but the blood did not fall on the earth (as stated in para-19 of his cross-examination). This witness has further stated in Para-26 of his cross-examination, that he is stating about this occurrence for the first time in the Court.
13. Mr. R.C.P. Sah, learned counsel appearing for the appellant has further submitted that information given to the Police by Amir Ansari as stated in Para-17 of the cross-examination of this witness is the First Information Report of a cognizable offence and the same has not been brought on record. Apart from this, this witness has admitted in Para-26 of cross-examination, that this is first statement in the Court about this occurrence and as such, examination of the Investigating Officer for elucidating the truth was necessary, but the appellant has not been given an opportunity to cross-examine the Investigating officer which has caused serious prejudice to the appellant. This witness has admitted in Para-19 of his cross-examination, that his clothes were stained with blood, but the blood has not fallen on the ground. If this statement is compared with the First Information Report, then it is apparent that a false case has been instituted against the appellant with whom the informant and the prosecution party has long-standing land dispute and there are cases pending between the parties. If a person is assaulted by iron-rod on the head causing bleeding injury then it is not believable that blood will not fall on the ground.
-6- [Cr. Appeal (SJ) No.190 of 2004]
14. Learned counsel for the appellant has further submitted, that in para-16 of his deposition in which place of occurrence has been described, and later on development was made by the other prosecution witnesses, as such non-examination of the Investigating Officer cause serious prejudice to the appellant as appellant could not get a chance for cross-examining the Investigating officer on the point of place of occurrence. The non-examination of the Investigating Officer has caused serious prejudice to the case of the appellant. Thus, the appellant is entitled to the benefit of doubt, as the parties are enmical to each other for the last several years and there are cases and counter case between the parties.
15. To this, Mr. Suraj Verma, learned Additional Public Prosecutor appearing for the State, has submitted that First Information Report is not an encyclopedia rather First Information Report has a disclsoure of a cognizable offence, but has fairly submitted that as per the statement of this witness and non-examination of Amir Ansari or Investigating Officer have caused some prejudice to the defence.
16. Kalim Ansari has been examined as P.W.3. This witness is brother of the informant and claims to be an eyewitness to the occurrence. This witness has stated that his mother was assaulted by Shafique, but she shifted her left hand and thus, got a fractured injury and blood was coming out and his elder brother, Naeem Ansari came there to save her, who also sustained bleeding injury on his head and fell down. This witness has stated that he and Shabir raised hulla. On hearing hulla, Raja Babu and Ainul Haque came there, but on seeing them, Safique Ansari fled away from there. During cross-examination, this witness has stated, that when Safique entered into the courtyard, none was there. Immediately after hearing hulla of Safique, he came there and after this witness, Shabir Ansari, Raja Babu, Ainul Haque, Arsuran Khatoon and Usman Mian came to the courtyard and subsequently 50-60 persons reached there. This witness in Para-16 of his cross-examination, has not stated before the Police that on hearing hulla, this witness, Shabir Ansari, Raja Babu, Ainul Haque and others of the locality reached the spot.
17. Mr. R.C.P. Sah, learned counsel for the appellant has submitted, that the evidence of this witness is not worth accepting as contradictory statement has been given by this witness. This witness has stated that blood was coming from the hand of his mother which
-7- [Cr. Appeal (SJ) No.190 of 2004] has not been stated in the First Information Report nor by Shabir Ansari who has been examined as P.W.1 or Naeem Ansari, informant of the case who has been examined as P.W.2. He has further submitted that as per the statement made in Paragraph-5 of his examination-in- chief, this witness has stated, that on raising hulla by him and Shabir, Raja Babu and Ainul came there. This witness has stated that after him, Shabir Ansari, Raja Babu, Ainul Haque, Arsuran Khatoon and Usman Mian came as stated in Para 11 of his cross-examination. If the statements of Para-5 of the examination-in-chief and Para-11 of cross- examination are compared then it is for the prosecution to first establish, that whether this witness Kalim came first or Shabir came first. If examination-in-chief is accepted, then it is Shabir came first. If statement of Para-11 is accepted, then it is Kalim who came first and thereafter Shabir came. Such evidence is not reliable to convict the appellant. Furthermore, if the statements made in Para-16 of the cross- examination are taken judiciously then this witness has admitted, that he has not stated before the Police that on hearing hulla, this witness, Shabir Ansari, Raja Babu, Ainul Haque, Arsuran Khatoon and Usman Mian and others of the locality reached at the spot.
18. Learned counsel for the appellant has further submitted, that non-examination of the investigating officer for elucidate the truth has caused serious prejudice to the appellant as there is contradictory statement made by this witness in Paras 5, 11 and 16 and as such, the testimony of this witness is fit to be discarded.
19. Mr. Suraj Verma, learned Additional Public Prosecutor appearing for the State has submitted, that although there is minor contradiction in the deposition of the witness, but that will not go to the root of the prosecution case and after lapse of a period of two years approximately, such minor contradictions cropped up.
20.Raja Babu has been examined as P.W.4. This witness is guest/relative of the informant. This witness has stated in Para-2 of the examination-in-chief, a new fact to the effect that, Shafique Ansari came out from his house with an iron rod in his hand and abused, entered inside the courtyard of Habib Mian. This fact is a new fact to the case as per the prosecution case as made out in the First Information Report and the evidence adduced by P.Ws.1, 2, and 3. This witnesses have only came after hulla was raised. None of the witnesses have said, that any person saw Shafique Ansari coming from his house,
-8- [Cr. Appeal (SJ) No.190 of 2004] entered and abused in the courtyard of Habib. This witness has given contradictory statement in Paras-4 and 5 of his cross-examination, as this witness has further stated that it is his sister, Asuran Bibi, who questioned Safique as to why he has entered into her courtyard, but subsequently, in Para-5, this witness has stated, that it is mother of Naeem who questioned Safique Ansari. This witness has further stated in Para-13 of his cross-examination regarding the place of occurrence. There are houses to the north and south of the courtyard, east of the courtyard, there is a boundary wall and door for exit is there. If the statements in Para-13 of P.W.4 and Para-16 of P.W.2 are compared, then the place of occurrence is not established in this case.
21. Mr. R.C.P. Sah, learned counsel for the appellant has submitted, that this witness is not a reliable and trustworthy witness, as he himself contradicts the material in Para-4 and Para-5 of his examination-in-chief. This witness cannot claim himself to be an eye- witness to the occurrence as the place occurrence described by P.W.2 in Para-16 is different from his description made in Para-13, , as such, this witness is relative of the informant and ought to have not relied upon by the trial court. Thus, learned trial court has committed grave error in putting reliance upon testimony of this witness for convicting the appellant in this case.
22. Mr. Suraj Verma, learned Additional Public Prosecutor for the State has fairly submitted, that there are contradictions with regard to Paras 4 and 5 of the examination-in-chief and as such, contradictions may occur because of lapse of time, but the mistake has been committed in Para-4 corroborated in Para-5 of the examination-in- chief. He has fairly submitted that the place of occurrence as described by the person on the basis of their legal acumen or knowledge and that cannot be disputed that a person is describing a place of occurrence is so identical to those which have been said by the other witnesses and as such, the impugned judgment of conviction and order of sentence warrants no interference by this Hon'ble Court.
23. Amna Bibi has been examined as P.W.5. She is one of the victims and mother of the informant. This witness has stated, that Shafique has assaulted her by iron-rod as Shafique was trying to assault on the head. She saved herself by raising left hand, due to which left hand got fractured injury. She has further stated in Para-4 of the examination- in-chief that when she raised hulla, on hearing hulla, first Naeem came
-9- [Cr. Appeal (SJ) No.190 of 2004] at the spot, then accused Shafique Mian assaulted Naeem by iron-rod which resulted in bleeding injury. Thereafter Shabir, Kalim and Raja Babu came to the spot and seeing them Shafique Mian fled away. She has further stated that Kasmar Hospital referred them to Bokaro for specialized treatment. Thereafter they were treated at Bokaro as well. During cross-examination, this witness has admitted, that land dispute was prevailing in between the parties. Four cases are pending prior to the occurrence. In para-10 of cross-examination, this witness has stated that she became senseless and fell down. She only regained her sense in the Police Station. From Kasmar Hospital, they came to their house and on the next day, they went to Bokaro. She has further admitted in Para-19 of her cross-examination, that she has knowledge that mother of accused Shafique Mian has also instituted a case against them for hand being broken by us. The said case is still subjudice against Naeem Mian.
24. Mr. R.C.P. Sah, learned counsel for the appellant has submitted, that in view of the new version given by this witness, as she has said that after she was assaulted by Safique Mian, she raised hullah and thereafter Naeem came. This belies the evidence of the other witnesses who have been examined as P.Ws.1, 3 and 4. As per those witnesses, Naeem and Amna Bibi were present in the courtyard and they have been assaulted by Shafique, but if the evidence of this witness is considered, then no body has seen the occurrence when Amna Bibi was assaulted. Apart from that, this witness has stated, that she was treated at Bokaro, but no medical paper of Bokaro has been exhibited to substantiate the prosecution case. Learned counsel for the appellant has further submitted, that as para-19 of the cross-examination of this witness, there is a case and counter-case in between the parties and both were not jointly tried as envisaged in State of M.P. Vs. Mishri Lal (Dead) & Ors., as reported in (2003)9 SCC 426 and thus, a serious prejudice has been caused to the appellant because the prosecution parties were aggressors, who entered inside the house of Shafique Ansari and assaulted the mother of Shafique, while fleeing away they fell down which will be corroborated from the evidence of the Doctor and as such, the impugned judgment of conviction and order of sentence is bad in law, as the investigating officer has not been examined in this case nor the cases i.e. case and counter case between the parties as admitted by this witness in Para-19 have not been tried
-10- [Cr. Appeal (SJ) No.190 of 2004] together and as such, the conviction of the appellant is bad in law.
25. Mr. Suraj Verma, learned Additional Public Prosecutor for the State has fairly submitted, that it was the bounden duty of the defence to bring on record, the prosecution case and its subsequent development of the counter-case, but if the defence has failed even though Defence has also examined two witnesses, benefit of doubt cannot be granted to the appellant.
26. Dr. Hardwar Singh has been examined as P.W.6. This witness has found two injuries on person of Naeem Ansari. Both were simple in nature and also found one injury on the left hand of Amna Bibi which was grievous in nature and proved the injury report of Naeem as Exhibit-2 and injury of Amna Bibi as Exhibit-3, but during cross- examination, this witness has admitted, that all the three injuries are possible by falling from height and injuries on Naeem Ansari are possible by simple fall on the earth. The x-ray was not done by him nor the X-ray plate was produced in the Court.
27. Mr. R.C.P. Sah, learned counsel for the appellant has submitted, that in absence of x-ray report or the injury report of Bokaro and in view of the statement of P.W.6 (Dr. Hardwar Singh), such injury on victims (Naeem) and Amna Bibi can be caused because of fall on earth from a height and Naeem Ansari can be caused because of falling on the earth. Apart from this, as per the prosecution case, there is an allegation that Naeem was assaulted once on the head by the iron-rod, but the Doctor has found two injuries on Naeem Ansari. 1 st injury is also simple in nature and as such, the prosecution has not been able to substantiate the oral evidence adduced by them with documentary evidence. The same is also falsified from the medical evidence of both the injuries. The appellant, who is in litigating term with the prosecution has been falsely implicated and the learned trial court has erred in convicting the appellant for the offence under Sections 307 and 325 of the Indian Penal Code, but the same is not sustainable in the eyes of law.
28. Mr. Suraj Verma, learned Additional Public Prosecutor for the State has submitted, that fracture injury on Amna Bibi has been found, which is grievous in nature and as such, conviction of appellant under Section 325 of the Indian Penal Code is justified. The accused/appellant has entered into the courtyard of prosecution to kill Habib Mian and as such, there was intention to commit murder. So
-11- [Cr. Appeal (SJ) No.190 of 2004] conviction of the appellant under Section 307 of the Indian Penal Code is also justified.
29. Habib Ansari, father of the informant has been examined as P.W.7. He is an hearsay witness.
30. Simon Raj has been examined as P.W.8. He is an Advocate clerk and formal witness. This witness has proved formal F.I.R. written by Shiv Kumar Shardul and has been marked as Exhibit-4 and endorsement made by Shiv Kumar Shardul over the report of Naeem Ansari has been marked as Exhibit-1. The case diary of Kasmar P.S. Case No.65 of 2000 of Paras 1 to 40 written by Sri C. R. Saran Prasad, posted as A.S.I. at Kasmar Police Station on 31.12.2000 and has been marked as Exhibit-5 although the learned trial court has committed error in marking Para-1 to 4o of the case diary which cannot be legally marked.
31. Mr. R.C.P. Sah, learned counsel for the appellant has submitted that P.W.7 (Habib Ansari) and P.W.8 (Simon Raj) are hearsay witnesses and P.W.8 is a formal witness who has failed to prove the F.I.R., but has admitted during cross-examination that no documents (exhibits) have been written in his presence.
32. Mr. Suraj Verma, learned Additional Public Prosecutor for the State has fairly submitted, that P.W.7 is a hearsay witness and P.W.8 is a formal witness.
33. Asuran Bibi has been examined as P.W.9 in this case. This witness is daughter-in-law of the victim (Amna Bibi). She has stated that Shafique Ansari has given a blow on Amna Bibi causing fracture of the hand. In the meantime, Naeem came there and Shafique also assaulted him. This witness has given the fatal blow to the prosecution case at para-11, when she has stated that the occurrence of assault took place in her courtyard, she was alone apart from the victim and the assailant was present at the time of occurrence, others came later meaning thereby, P.W.1, P.W.3 and P.W.4 were not present at the of time occurrence.
34. Furthermore, the presence of these witnesses being P.W.1, P.W.2 and P.W.3 at the place of occurrence has been questioned by P.W.9 herself as such, vital contradiction in this case and thus, evidence of P.W.9 is fit to be discarded.
35. After closure of the prosecution evidence, the statement of the appellant Shafique Ansari has been recorded under Section 313 of the
-12- [Cr. Appeal (SJ) No.190 of 2004] Criminal Procedure Code on 03.06.2003, to which he denied and claimed to adduce defence witnesses.
36. The defence has also examined two witnesses, Samal Mian as D.W.1 and Alam Ansari as D.W.2 and apart from this, defence has exhibited Certified copy of charge-sheet of Kasmar P.S. Case No.6 of 2000 as Exhibit-A.
37. Learned trial court after hearing the parties has passed the impugned judgment whereby the appellant has been acquitted for the charge under Section 452 of the Indian Penal Code but convicted for the charge under Sections 307 and 325 of the Indian Penal Code.
38. Mr. R.C.P. Sah, learned counsel appearing for the appellant has submitted that since the appellant has been acquitted of the charge under Section 452 of the Indian Penal Code, neither the State nor the appellant has preferred the appeal and as such, in view of non- establishment of the place of occurrence, as made out in the evidence of P.W.2 and P.W.3, the place of occurrence is itself doubtful and because of acquittal of appellant under Section 452 of the Indian Penal Code, conviction under Sections 307 and 325 of the Indian Penal Code cannot sustain in eyes of law as presence or entry in the courtyard of informant by the appellant is not proved and same has not been assailed by informant or State.
39. Learned counsel for the appellant has further submitted that P.W.5 (Amna Bibi) has herself admitted in Para-19 of her cross- examination that for the same occurrence, mother of accused/appellant Shafique Ansari has also filed a case which is still subjudice. The place of occurrence is disputed and it is the house of Safique Ansari, where they have entered as aggressor and sustained injuries while fleeing away, they fell down as corroborated by the Medical officer, Doctor (P.W.6- Dr. Hardwar Singh). The conviction of the appellant, under Section 325 of the Indian Penal Code cannot sustain in the eyes of law. He has further submitted that there was no ingredient to constitute office under Section 307 of the Indian Penal Code. He has further submitted that in absence of any ingredient under Section 307 of the Indian Penal Code, or material that the appellant entered inside the house with an intention to kill, the conviction of the appellant under Section 307 of the Indian Penal Code is not sustainable in the eyes of law.
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40. Learned counsel for the appellant has submitted that there is no repetition of blow. Further more, had there been any intention as per the evidence of P.W.2 (Naeem Ansari) and P.W.5 (Amna Bibi), both became unconscious after they sustained injury. There was no intervening circumstances for the appellant, if the appellant had intention to kill these persons, who have fallen and became unconscious, but no such intention was found nor any evidence was brought on record to show such intention and as such, conviction of the appellant, is not sustainable in the eyes of law.
41. Mr. R.C.P. Sah, learned counsel for the appellant has submitted that conviction of the appellant under Section 325 of the Indian Penal Code cannot be sustained in the eyes of law as the Doctor has categorically stated that such injury may be caused because of fall and coupled with the fact that non-examination of the investigating officer the place of occurrence is not established as trial Court has acquitted the appellant under Section 452 of the Indian Penal Code in the background of the case, where the parties are in litigating term. There are four cases pending between them and as such, benefit of doubt can be granted to the appellant by setting aside the impugned judgment of conviction.
42. Mr. Suraj Verma, learned Additional Public Prosecutor appearing for the State has submitted, that although there is minor contradiction in the prosecution case, but that will not help the case of the defence and the learned trial court has rightly convicted the appellant under Sections 325 and 307 of the Indian Penal Code.
43. After hearing the parties and on perusal of the First Information Report, evidence, exhibits and other materials available on record, this Court is of the opinion that the submission made by the learned counsel for the appellant has some force as non-examination of the investigating officer has caused serious prejudice to the appellant. Further the place of occurrence has not been proved by the prosecution. From perusal of the injury report, it suggest that the injury found on the person of Nayeem i.e. 2 in number whereas allegation has been made that Naeem was assaulted once and as such, vital contradictions are there. Further the appellant has been acquitted under Section 452 of the Indian Penal Code. Under such circumstances, the appellant deserves benefit of doubt.
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44. Accordingly, the impugned judgment of conviction and order of sentence both dated 21.01.2004, passed in S.T. No.27 of 2001 ((Kasmar P.S. Case No.65 of 2000 corresponding to G.R. No.985 of 2000) by the learned 5th Additional Sessions Judge, Bermo at Tenughat, is hereby set aside by giving benefit of doubt to the appellant.
45. The appellant, who is already on bail, is discharged from the liability of the bail bond.
46. In the result, the instant appeal stands allowed.
47. Let L.C.R. be sent to the court concerned and a copy of this judgment be sent to the court concerned.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated 23rd April, 2018.
sandeep/