Jharkhand High Court
Jainul Sheikh vs The State Of Bihar (Now Jharkhand) on 25 August, 2018
Equivalent citations: AIRONLINE 2018 JHA 217
Author: B.B. Mangalmurti
Bench: B.B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.9900235 of 2000
[Against the Judgment of conviction and Order of sentence dated 29th June,
2000, passed by Shri Binay Kumar Sinha, Additional Sessions Judge, Pakur
in S.T. No. 20 of 1997 / 4 of 1997]
1. Jainul Sheikh
2. Hajikul Sheikh
Both sons of Usman Sheikh, Resident of Taranagar, P.S. Pakur,
District-Pakur .... Appellants
Versus
The State of Bihar (Now Jharkhand) .... Respondent
PRESENT
HON'BLE MR. JUSTICE B.B. MANGALMURTI
.....
For the Appellants : Mr. Niraj Narayan Mishra, Advocate Mr. Pawan Kumar Pathak, Advocate For the State : Mr. Mukesh Kumar, APP .....
C.A.V. ON 20.06.2018 PRONOUNCED ON 25/08/2018
B.B.Mangalmurti, J.:- Heard learned counsel for the appellants and learned
counsel for the State.
2. The appellants are aggrieved by the impugned Judgment of conviction and Order of sentence dated 29th June, 2000, passed by the Additional Sessions Judge, Pakur in S.T. No. 20 of 1997 / 4 of 1997, whereby, the appellant-Jainul Sheikh and another appellant-Hajikul Sheikh have been convicted and sentenced for the offence under Section 307/34 of the Indian Penal Code to undergo R.I. for seven years by each of the appellant. Appellant- Hajikul Sheikh has been further convicted and sentenced for the offences under Sections 326 of the Indian Penal Code and to undergo R.I. for four years under Sections 326 of the Indian Penal Code. Both the sentences shall run concurrently.
3. The prosecution case was instituted on the basis of the fardbeyan of Abu Tahir Sheikh, recorded on 07.06.1996 at about 19.30 at Pakur (M) Police Station, wherein he has stated that on Friday 07.06.1996 at about 4.00 p.m. he was going to the tea stall of Hirasuddin Seikh situated at Taranagar for taking tea. While he was about to reach -2- Cr. Appeal (SJ) No.9900235 of 2000 the tea stall, he saw some altercation going on between his brother Ansarul Sheikh with accused Jainul Sheikh, Hajikul Sheikh, Maniruddin Sheikh and Ali Hussain Sheikh. When he tried to pacify them, accused Jainul asked his brother Hajikul to bring Hansua from the house and kill both the brothers i.e. informant Abu Tahir Sheikh and Ansarul Sheikh. Thereafter, Hajikul Sheikh brought Hansua from the house and gave a blow to the informant in his waist due to which the informant fell down. Thereafter Hajikul Sheikh assaulted the brother of the informant by Hansua due to which Ansarul sustained injury on his left hand. On hearing the noise, the villagers gathered and intervened in the matter. Thereafter, the informant went to the Police Station in injured condition and gave his fardbeyan. On the basis of his fardbeyan, Pakur (M) P.S. Case No. 109 of 1996, corresponding to G.R. No.225 of 1996, was instituted for the offence under Section 324 of the Indian Penal Code, against four accused persons namely, Jainul Sheikh, Hajikul Sheikh, Maniruddin Sheikh and Ali Hussain Sheikh and investigation was taken up. During investigation, Section 326 of the I.P.C. was added. After investigation, the Police submitted Charge- sheet under Sections 324, 326 and 307/34 of the Indian Penal Code.
4. After taking cognizance, the case was committed to the Court of Sessions, then charge was framed against all four accused persons for the offence under Section 307/34 of the Indian Penal Code and in addition to it, charge was also framed against accused Hajikul Sheikh for the offence under Section 326 of the Indian Penal Code, and upon pleading not guilty and claiming to be tried, they were put to trial.
5. In course of trial, eight witnesses were examined on behalf of the prosecution, including the I.O. and the Doctor, but no defence witness was examined on behalf of the accused persons, though they have brought on record three exhibits in support of their case.
6. P.W.1, Reyajuddin Seikh stated that on the day of occurrence at 4.00 p.m. he was present at the tea shop of Hirasuddin -3- Cr. Appeal (SJ) No.9900235 of 2000 which is situated in village Taranagar, where he saw that some altercation was going on in between his brother Ansarul and Jainul because Jainul used to assault his wife Wahida Bibi who happens to be niece of Ansarul. He suggested to divorce her. Thereafter, Jainul told his brother Hajikul to bring Hansua. Hajikul brought Hansua and assaulted on the back of Abu Tahir and also assaulted Ansarul on his hand. On alarm, many villagers assembled there. In his cross examination, this witness has stated that Ansarul is his brother. He admitted that on the same day Mehar Nigar was murdered in which Rejaul Sheikh is one of the accused.
7. P.W.2 is Mirajul Sheikh who stated that on the day of occurrence he had gone to the tea shop of Hirasat and saw that Ansarul was quarrelling with Jainul, Ali Hussain and Maniruddin. The niece of Ansarul, Wahida was married with Jainul. Ansarul was accusing Jainul about assault caused to his niece Wahida as there was no issue from her. Jainul called his brother Hajikul to bring Hansua and Lathi. Thereafter, Hajikul brought Hansua and assaulted Abu Tahir with Hansua. When Ansarul tried to save his brother Abu Tahir, Hajikul also assaulted Ansarul causing injury on his hand.
8. P.W.3 Bismillah Sheikh stated that on the day of occurrence on Friday at 4 p.m. he was at the tea shop of Hirasuddin and saw that there was scuffle between Hajikul, Jainul and Ansarul. Jainul told Hajikul to bring Hansua then Tahir came and intervened not to quarrel. Hajikul brought Hansua from his house and assaulted Tahir on his back. When Ansarul came to save Tahir, Hajikul assaulted Ansarul on his left hand. Thereafter, on hulla, villagers gathered there. Mehar Nigar also came there and objected about the quarrelling between them, then Hajikul assaulted Mehar Nigar upon her chest. He recognized accused persons in Court. During cross-examination, he admitted that he is Samdhi of Najrul Sheikh. He was not aware whether Najrul was an accused in murder case of Mehar Nigar or not.
-4-Cr. Appeal (SJ) No.9900235 of 2000
9. P.W.4-Ansarul Sheikh is one of the injured and eye witness of this case. He was also present at the tea shop of Hirasuddin. Quarrel between him and Jainul started, then Hajikul, Anisuddin and Ali Hussain came there. Jainul ordered Hajikul to bring Hansua from the house. Hajikul assaulted Tahir on his back from Hansua as also to this witness causing injury to his left hand. On alarm, many persons assembled there and matter ended. He recognized accused persons in court. During cross-examination, he stated that Mehar Nigar also got injuries for which she was taken to Pakur but she died on the way. He admitted that he is one of the accused in that murder case.
10. P.W.5 is Abu Tahir Sheikh, informant of this case who stated that on the day of occurrence he was taking tea at the shop of Hirasuddin at Taranagar. His younger brother Ansarul was with him who also came to that shop for taking tea. At that time scuffle between Ansarul and Jainul took place. Ansarul told Jainul to take care of her niece Wahida Rahman. Abu Tahir tried to pacify the matter then Jainul told Hajikul to bring Hansua and Hajikul assaulted him on his back. He also stated that if villagers would not have intervened then accused persons might have killed them. He recognized accused persons in court and claimed to recognize absentee accused. During cross- examination, he admitted that accused are witness in murder case of Mehar Nigar and they have deposed also. He was cross examined at length.
11. P.W.6 is Dr. Bindu Bhushan who stated that he examined Abu Tahir Sheikh on 07.06.1996 at 8.15 p.m. and found sharp cut oblique injury 3" x 2" x bone deep near just middle of the back, caused by heavy sharp cut weapon. In his opinion, injury was grievious in nature. He proved injury report as Ext.- 1.
He also examined Ansarul Sk. on 07.06.1996 at 8.30 p.m. and found sharp cut injury of 2 ½" x 1" x muscle deep, on dorsum surface of left forearm just above wrist. Injury caused by sharp cut and heavy weapon, simple in nature. This Injury Report was marked as Ext.- 1/1.
-5-Cr. Appeal (SJ) No.9900235 of 2000
12. P.W.7 is Imamuddin who stated that on 07.06.1996 he was posted as A.S.I. in Pakur (M) Police Station. On that day he recorded the fardbeyan of Abu Tahir Sheikh at 19.30 and read over it thereafter Informant put his L.T.I. on it. On the basis of fardbeyan, case was registered as Pakur (M) Police Station and started the investigation. He inspected the place of occurrence and took re-statement of informant. He sent both injured for treatment to the hospital. He gave details of the place of occurrence which was the road near the house of Ali Hussain. He has proved fardbeyan which was in his handwriting and proved as Ext.2. Formal F.I.R. was proved as Ext.- 3. Due to his transfer, he handed over Charge of the case on 09.07.1996. During cross- examination, he admitted that on the same day he had inspected the same place of occurrence relating to another case involving death of Mehar Nigar. He further stated that he had prepared inquest report of Mehar Nigar and had also seized blood stained soil from that place. He is unable to recollect by that time this case being Pakur (M) P.S. Case No.109 of 1996 was lodged or not. He also stated that he had not seized any Hansua from the place of occurrence.
13. P.W.8 is Samshul Haque, another I.O. of this case who had taken over the charge from previous I.O. He had recorded the statement of injured Ansarul while he was in custody. He had obtained the injury- reports and after completion of investigation submitted the charge- sheet in this case.
14. The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procdure in which they have denied the evidences against them.
15. Although the defence has not adduced any oral evidence but proved certified copy of the deposition in Sessions Case No. 205 of 1996 as well as certified copy of judgement in that case as Ext.- B, and certified copy of F.I.R. of Pakur (M) P.S. Case No.108 of 1996 giving rise to S.C. Case No. 205 of 1996 as Ext.- C. -6- Cr. Appeal (SJ) No.9900235 of 2000
16. Learned counsel for the appellants submitted that the Trial Court found only these two appellants guilty under Section 307/34 as well as another appellant Hajikul Seikh was also found guilty under Section 326 of the Indian Penal Code. He further submitted that it was not a pre-planned assault and no repeated blow was given and only minor force was applied. Therefore, ingredients of Section 307 are not made out in this case. He also submitted that the weapon of assault was not seized by the first I.O. who has been examined as P.W.-7. This witness has categorically admitted that he was present at the place of occurrence in connection with another case and at that time he was not aware about the lodgement of the present case. He further submitted that it is a case and counter case and witnesses have also admitted that they are accused and the appellants are witnesses of the murder case of Mehar Nigar. The time of occurrence and place of occurrence would reveal that informant side was assailant and just to save themselves from a murder case, they have lodged this false case. There is absence of mens rea and intention to cause attempt on the life of the informant. Therefore, the case does not fall under the parameter of Section 307/34 of the Indian Penal Code. The injury-report of Ansarul Seikh was proved as Ext.-1/1. The Doctor has found the injury simple in nature. The injury caused to informant Abu Tahir Seikh is found grievious in nature which was in the middle of the back and the nature of injury was not such to cause death. Therefore, in totality, the conviction is not sustainable under Section 307 of the Indian Penal Code. Lastly, he submitted that the witnesses examined on behalf of the prosecution are highly interested witnesses.
17. Learned A.P.P. appearing on behalf of the State opposed and submitted that the three eye-witnesses P.W.-1 Reyajuddin Seikh, P.W.-2 Mirajul Seikh and P.W.-3 Bismillah Sheikh are eye-witnesses of this case whereas P.W.-4 Ansarul Seikh and P.W.-5 Abu Tahir Seikh ( Informant of this case) are injured of this case and have proved the prosecution case completely. He further submitted that the injury -7- Cr. Appeal (SJ) No.9900235 of 2000 inflicted upon the informant is grievious in nature and court below has rightly convicted both the appellants. He also submitted that even if the witnesses are related and the evidences are cogent, credible and trustworthy, then their evidences cannot be discarded merely on the ground of his relationship with the deceased or injured. He relied on a decision of R. Prakash Versus State of Karnataka reported in (2004) 9 SCC 27.
18. Having heard learned counsel for both the sides and on scrutiny of evidences brought on record, it appears that on the order of Janinul Sheikh, Hajikul brought Hansua from the house and caused injury to informant Abu Tahir Sheikh on his back and the doctor has found sharp cut oblique injury 3" x 2" x bone deep near just middle of the back, caused by heavy sharp cut weapon. In his opinion, injury was grievious in nature whereas Ansarul Sheikh, another eye witness, has also got injury on his left hand and the doctor has found sharp cut injury of 2 ½" x 1" x muscle deep, on dorsum surface of left forearm just above wrist but found injury simple in nature. It can be inferred that it was not a pre-planned assault and no repeated blow was given but only minimal force was applied. It further appears that prosecution have able to establish the injury caused by the appellants in which one of them is instigator, therefore, both the appellants are held to be voluntarily causing grievious hurt by means of sharp cut instrument used as a weapon of offence that may likely to cause death. Both the appellants have caused grievious hurt on grave and sudden provocation with intent to cause grievious hurt to both the injured persons i.e. informant and his brother. The ingredients of Section 307 of the Indian Penal Code have not been proved by the prosecution, but has able to prove the grievious hurt on sudden provocation. Therefore, both the appellants are held guilty only under Section 326 of the Indian Penal Code. Therefore, in such circumstances, both appellants Jainjul Sheikh and Hajikul Sheikh who have been held guilty under Section 307/34 of the Indian Penal Code, is modified and are held guilty only -8- Cr. Appeal (SJ) No.9900235 of 2000 under Section 326 of the Indian Penal Code. So far another appellant Hajikul Sheikh who has been held guilty by the trial court under Section 326 of the Indian Penal Code, is hereby confirmed.
19. In these circumstances, both the appellants are held guilty under Section 326 of the Indian Penal Code for voluntarily causing grievious hurt by sharp cutting weapon. Appellant Jainul Sheikh is awarded sentence of four years rigorous imprisonment, whereas Hajikul Sheikh has already been held guilty separately under Section 326 of the Indian Penal Code and has been awarded four years rigorous imprisonment by the Sessions Court which is confirmed.
20. In the result, this appeal is partly allowed with the modification as indicated hereinabove in S.T. No. 20 of 1997 / 4 of 1997 passed by the Additional Sessions Judge, Pakur dated 29th June, 2000.
21. Let the Lower Court Record be sent back to the court concerned along with the copy of this judgment.
22. The appellants are on bail so bail of both the appellants are hereby, cancelled. The court below will take steps so that appellants will serve out the sentence awarded to them.
(B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, the 25th August, 2018 Anit/NAFR