Jharkhand High Court
Haider Ali Ansari & Ors vs State Of Jharkhand on 1 September, 2010
Equivalent citations: 2011 (1) AIR JHAR R 566, (2011) 97 ALLINDCAS 732 (JHA) (2010) 4 JCR 378 (JHA), (2010) 4 JCR 378 (JHA)
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
CRIMINAL APPEAL NO. 1680 of 2004
...
Against the judgment of conviction dated 14.09.2004 and order of
sentence dated 16.09.2004 passed by Sri Jai Prakash Narayan Pandey,
Additional Sessions Judge, F.T.C.2, Bokaro in Sessions Trial No. 196 of
1999 and Supplementary Sessions Trial No. 98 of 2003.
...
1. Haidar Ali Ansari
2. Asraff @ Hasamat Ali Ansari
3. Mumtaz Ansari
4. Habib Ansari
5. Basir Ansari
6. Barkat Ansari ... ... Appellants
V e r s u s
State of Jharkhand ... ... Respondent
...
CORAM : HON'BLE MR. JUSTICE D.G.R. PATNAIK
For the Appellants : M/s. M.S.Chhabra & B.K.Sinha, Advocates
For the State : Mr. Amaresh Kumar, A.P.P.
For the Informant : Mr. Sanjay Kumar, Advocate
...
BY COURT Heard counsel for the appellants and counsel for the State as also
counsel for the informant.
2. The appellants in this case were convicted by the trial court for the
offences under Sections 147 and 436/34 of the Indian Penal Code. The
appellants Barkat Ansari, Basir Ansari and Mumtaz Ansari have also been
convicted for the offence under Section 323/34 of the Indian Penal Code.
Upon being convicted, the appellants were sentenced to undergo R.I. for
five years for the offence under Section 436, one year for the offence under
Section 147 and Six months for the offence under Section 323 of the
Indian Penal Code.
3. The case of the prosecution in brief is that in the morning of
01.04.1995, the appellant Bashir Ansari objected to the throwing of peels of cabbage by the informant's niece in front of his house. This led to an altercation between the informant and the appellant Bashir Ansari who was soon joined by the other coappellants and it is alleged that the appellants indulged in abuse and assault and had also set fire to a hut situated within the compound, belonging to the informant. Specific allegation in the F.I.R. has been made against the accused appellant Barkat Ansari of assaulting the informant's sister Nasiban Bibi with Lathi and against the appellant Bashir Ansari of assaulting the informant's sisterin law. Similar allegation has been made against the coconvict Mumtaz Ansari of having assaulted his elder sisterinlaw.
2A case in respect of the alleged incident was registered at the police station vide Chas P.S. Case No. 58 of 1995 for the offences under Sections 147, 323, 435, 448, 337 and 379 of the Indian Penal Code.
At the conclusion of the trial, the Investigating Officer submitted chargesheet recommending the trial of the accused persons for the offences under Sections 147, 323, 435/34, 448, 337 and 379 of the Indian Penal Code. Upon cognizance of the aforesaid offences being taken by the court below, trial for the said offences against the present appellants commenced before the Magistrate.
It appears that at the conclusion of the trial, the Magistrate recorded an observation that the offence under Section 436 is made out primafacie against the accused persons and upon such observation, the Magistrate committed the case of the accused persons to the court of Sessions. A fresh trial was initiated thereafter against the present appellants on charges for the offences under Sections 147, 379 and 436/34 of the Indian Penal Code and in addition, Section 323/34 of the Indian Penal Code against the appellant Nos. 3, 5 and 6.
4. As many as seven witnesses including the Investigating Officer of the case, the informant of the case and the witnesses being the members of informant's family were examined by the prosecution.
5. It needs to be mentioned that though allegation of assault and injury sustained by the victims as a result of assault was alleged in the prosecution case, but no doctor has been examined to prove the medical reports. Instead a formal witness who happens to be an Advocate's Clerk had introduced the injury reports by way of formal evidence.
6. Upon considering the evidences on record, the trial court recorded its finding that the offence under Section 436/34 read with Section 147 of the Indian Penal Code is made out against all the accused persons and in addition, the offence under Section 323/34 of the Indian Penal Code is made out against the appellant Nos. 3, 5 and 6.
7. Upon recording the judgment of conviction in the aforesaid manner, the learned trial court sentenced the appellants to undergo imprisonment for five years for the offence under Section 436/34 I.P.C. and other sentences as mentioned above.
8. The appellants have challenged the impugned order of conviction on the following grounds : 3
(i) The conviction for the offence under Section 436 of the Indian Penal Code is totally misconceived and is against the weight of evidence on record. Learned counsel for the appellants points out by referring to the evidence of the Investigating Officer that upon inspection of the place of occurrence, the Investigating Officer had found that the hut which was alleged to have been burnt was not used for any purpose either residential or for storing any material by the informant or any member of informant's family. On the contrary, the hut which was located within the same compound in which the houses of the informant and the accused persons are located, was an empty hut. This fact is further confirmed by the seizure list prepared by the Investigating Officer which had indicated that the burnt remnants of the straw and bamboos with which the hut was constructed were the only materials found at the alleged place of occurrence.
Learned counsel for the appellants explains that the fact that there was no property stored in the hut nor was the hut used as a dwelling house is further confirmed from the conduct of the informant and the members of his family in view of the fact that none of these witnesses had attempted to extinguish the fire and it was upon receipt of the information, when the police visited the place of occurrence after about three hours of alleged time of occurrence then the police had extinguished the fire. This, accordingly to the learned counsel, only indicates that the informant and the members of his family were not eager and anxious to extinguish the fire as it was an empty hut and there was no loss of any property as such.
(ii) Even according to the evidence of witnesses, the incident occurred at the spur of moment and none of the appellants were armed with any weapon. Furthermore, there was a land dispute pending between the parties since several years and several litigations were pending between them. In some of such litigations, being proceedings under Section 147 and 144 Cr.P.C., the decision had gone in favour of the appellants and bearing grudge on account of such adverse 4 orders, the informant party has implicated the appellants on false allegations.
(iii) No independent witness has been examined by the prosecution despite the admitted fact that quite a few neighbouring residents of the village were present at the time and place of occurrence.
(iv) In absence of the proof of the injury reports through the doctor who had purportedly issued the injury reports, the inference of guilt under Section 323 of the Indian Penal Code against the appellant Nos. 3, 5 and 6 is totally misconceived.
(v) The present occurrence is of 1995 and for about 15 long years the appellants had suffered the rigors of trial till the date of their conviction on 14.09.2004 by the trial court.
9. Learned counsel for the State as also counsel for the informant would submit argument in support of the impugned judgment of conviction and sentence.
Learned counsel for the informant submits that the statement of witnesses including that of the informant and P.Ws.1, 3, and 4 would indicate that the hut which was burnt down was used by the informant and the members of his family for the purpose of cooking their food and therefore on the basis of such evidence, the offence under Section 436 of the Indian Penal Code is made out.
As regards the conviction for the offence under Section 323 I.P.C., learned counsel submits that for the offence under Section 323 I.P.C., the proof of any injury report is not altogether necessary.
As regards the offence under Section 147 I.P.C., it is in the evidence of the witnesses that the present appellants had illegally trespassed into the house of the informant and had indulged in acts of vandalism.
10. I have gone through the evidences of the witnesses as also the impugned judgment of conviction and sentence passed by the court below. It appears that though the informant and the members of his family would claim that the hut which was burnt down, was used for the purpose of cooking, but from the evidence of the Investigating Officer it appears that he had not found any such utensil or vessel used for cooking purpose nor did he find any such property of any value at the place of occurrence. On the contrary, the categorical admitted statement of the Investigating 5 Officer is that he had found the burnt remnants only of hay and wood and no other materials. This appears to be a vital contradiction in the evidences of the prosecution witnesses for which the prosecution has not been able to give a reasonable explanation. It is manifest from these facts that having not found any evidence for the offence under Section 436 I.P.C., the Investigating Officer had submitted chargesheet recommending trial of the accused/appellants for the offence under Section 435 of the Indian Penal Code. It appears from the impugned judgment of the court below that the trial court has failed to appreciate this aspect and the vital contradiction in the evidences of the prosecution witnesses and has wrongly recorded the finding of guilt against the appellants under Section 436 of the Indian Penal Code.
11. As regards the offences under Sections 147 and 323 of the Indian Penal Code, I find that the evidences of the witnesses are consistent and has led to the reasonable inference of guilt of the accused/appellant for both the aforesaid offences.
12. It is true that no independent witness has been examined but the prosecution has explained that none of the witnesses have come forward to depose in evidence. The other witnesses who have been examined by the prosecution, being the members of the informant's family, their evidence cannot be ignored merely because they happen to be the informant's own relatives. Their presence at the place and time of occurrence, cannot be disputed. The fact that the Investigating Officer had found that a hut which was standing within the compound of the house of the informant, was burnt, and the evidence of the Investigating Officer to the effect that he had found marks of injury on the body of the victims and had referred them for medical examination, lends support to the evidence of the prosecution witnesses in respect of the offence under Sections 147 and 323 of the Indian Penal Code.
It further appears from the evidence that though the accused persons are alleged to have burnt the hut, but such allegation is confined only to the appellants Bashir Ansari and Barkat Ansari. The other appellants have been convicted for the offence of causing mischief by fire with the aid of Section 34 I.P.C. This aspect also does not appeal to reason in the light of the evidence of the witnesses. On observing the sequence of events as alleged in the First Information Report and also in the evidence of witnesses, it appears that the genesis of the occurrence was the annoyance caused to the appellant Bashir Ansari on account of the 6 throwing of cabbage peels in front of his house by the niece of the informant. This led to a sudden altercation followed by use of physical force and during such transaction, the hut was set on fire. It is apparent therefore that there was no premeditation or meeting of minds between all the appellants for causing the offence of mischief by fire. The conviction for offence of causing mischief by fire of all the appellants read with Section 34 of the Indian Penal Code is therefore improper and not merited.
13. In the light of the facts and circumstances and the discussions made above and also considering the fact that the appellants have already undergone the rigors of trial for more than 15 years since the date of commencement of the proceeding and also considering the fact that the informant and the appellants are next door neighbours living within the same compound and to enable restoration of goodwill between them, the conviction and sentence of the appellants under Section 436 of the Indian Penal Code is hereby set aside. Instead, the conviction is altered for the offence under Section 435 of the Indian Penal Code confined only to the appellants Bashir Ansari and Barkat Ansari. As regards the conviction of the appellants for the offence under Section 147 I.P.C. and of the appellants Mumtaz Ansari, Bashir Ansari and Barkat Ansari for the offence under Section 323/34 I.P.C., the same is sustained.
14. In the light of the fact that the conviction and sentence for the offence under Section 436 I.P.C. has been set aside, the conviction is modified and the appellants Basir Ansari and Barkat Ansari are convicted for the offence under section 435 IPC. The sentence against all the accused persons for the offences under which conviction is sustained, is modified and reduced to the extent of the period of imprisonment which the appellants had undergone as undertrial prisoners and the said period shall be set off accordingly.
With these observations, this appeal is disposed of.
(D.G.R. Patnaik, J) Jharkhand High Court, Ranchi Dated the 1st day of September, 2010 Birendra/