Md. Yunus @ Yunus Parvej @ Yunus Parwez … v. The State of Jharkhand
Case Details
1 Cr. Appeal (S.J.) No. 52 of 2011 With Cr. Appeal (S.J.) No.51 of 2011 IN THE HIGH COURT OF JHARKHAND AT RANCHI ------- (Against the same judgement of conviction and order of sentence dated 06.12.2010 passed by the Court of the learned Additional Sessions Judge, FTC- III at Hazaribagh in Sessions Trial No. 302 of 2004, arising out of Sadar P.S. Case No. 190 of 2003, corresponding to G.R. No. 1082 of 2003, Hazaribagh, Jharkhand) Cr. Appeal (S.J.) No. 52 of 2011 ------ Md. Yunus @ Yunus Parvej @ Yunus Parwez … ... Appellant Versus The State of Jharkhand … … Respondent With Cr. Appeal (S.J.) No. 51 of 2011 ------ 1. Md. Farooque 2. Tinku 3. Ansar … ... Appellants Versus The State of Jharkhand … … Respondent
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE NAVNEET KUMAR ----- For the Appellants For the State -------- : Mr. Kripa Shankar Nanda, Advocate : Mr. Kumar Saurav, Amicus Curiae : Mr. Sanjay Kr. Srivastava, A.P.P. : Mr. P.D. Agrawal, S.P.P. -------- JUDGMENT Dated: 26th April, 2023 Heard learned counsel appearing on behalf of the appellants assisted by Mr. Kumar Saurav, the learned Amicus Curiae appointed by the order this Court to argue on behalf of the appellants in both the aforesaid Criminal Appeals and learned counsels for the State, Mr. Sanjay Kumar Srivastava, A.P.P. and Mr. P.D. Agrawal Special P.P. in their respective cases. 2. Learned counsel for the appellants assisted by learned Amicus Curiae has submitted that both the aforesaid appeals are directed against the same judgement of conviction and order of sentence dated 06.12.2010 passed by the Court of the learned Additional Sessions Judge, FTC-III at Hazaribagh in Sessions Trial No. 302 of 2004, arising out of Sadar P.S. Case No. 190 of 2003, corresponding to G.R. No. 1082 of 2003, whereby and where under the appellant Md. Yunus @ Yunus Parvej @ Yunus Parvez of Criminal Appeal (S.J.) No. 52 of 2011 was convicted and 2 Cr. Appeal (S.J.) No. 52 of 2011 With Cr. Appeal (S.J.) No.51 of 2011 sentenced to undergo rigorous imprisonment for three months for the offence under Section 323 of the Indian Penal Code and he was further convicted and sentenced to undergo rigorous imprisonment for two years and six months together with a fine of Rs.5,000/- for the offence under Section 307 of the Indian Penal Code and in default of payment of fine he was directed to further undergo rigorous imprisonment for one month and all the sentences were directed to run concurrently. 3. Further the appellants, Md. Farooq (Appellant No. 1) of Criminal Appeal (S.J.) No. 51 of 2011 and Md. Ansar (Appellant No. 3) were convicted for the offence under Section 341 of the Indian Penal Code and appellant No. 2 Tinku, was convicted for the offence punishable under Section 323 of the Indian Penal Code and after recording the conviction of all the aforesaid three appellants i.e. appellant No. 1, appellant No. 2 and appellant No. 3, of Cr. Appeal (S.J.) No. 51 of 2011, the learned Court below had given them the benefit of Section 3 of the Probation of Offenders Act and all the appellants were released from custody after the due admonition. 4. The prosecution story arose in the wake of the fardbeyan of Md. Ramzan Ali whose statement was recorded on 09.05.2003 at 12:00 noon in the Sadar hospital. The said informant alleged that on 09.05.2003 at about 9:00 A.M. in the morning the son of the informant namely Kuddush came before the informant Md. Ramzan and told him that the accused persons namely Kamruddin, Farooque, Yunus Ansari and Tinku alongwith some other accused persons were destroying the old house of the informant situated near old mosque in village Mandai Kala, P.S. Sadar, District Hazaribagh and thereupon the informant went to his aforesaid house and saw that tiles and bamboo of his house were removed and accused Kamruddin, Farooque, Yunus Ansari and others were removing wood of his old house then the informant asked the accused persons not to damage his old house by removing the aforesaid articles and then the wife of the brother of informant told the informant that it was her own house. Thereafter, accused Farooque and Ansar came there and caught the informant Ramzan and above named accused Yunus gave spade blow at the head of the informant causing injuries on his head and when the son of informant namely Kahlid came to save the informant, accused Farooque and Ansar also caught Khalid and accused Yunus gave spade blow at the head of Khalid from backside causing 3 Cr. Appeal (S.J.) No. 52 of 2011 With Cr. Appeal (S.J.) No.51 of 2011 injuries on his head and after sustaining injuries Khalid fell down on earth. Thereafter the informant went to save Khalid then accused Tinku threw small stones at the informant causing injuries on the left cheek of the informant and when the wife of the informant Akliman Khatun came to save then she also sustained injuries by spade. After occurrence the informant along with his son Md. Khalid went to Sadar Hospital for treatment. On the basis of statement of informant Md. Ramzan recorded by police regarding occurrence, F.I.R. under sections 341, 323, 324, 337 and 427 of IPC was lodged against all accused as Sadar P.S. Case No.190/2003. After investigation, I.O. of the case submitted charge sheet under sections 341, 323, 324, 337, 427 & 307 of IPC against all accused persons, and, accordingly, cognizance was taken by Learned C.J.M., Hazaribag. Thereafter, the case was committed in the court of Sessions. Charge under section 341, 323, 324, 337, 427 & 307 of IPC has been framed on 08 June 2007 by Learned Addl. S.J., F.T.C.-VII, Hazaribag. Charges were read over and explained to accused in Hindi. The accused pleaded not guilty. Statement of accused persons were recorded under section 313 Cr.P.C. in which all the accused denied the occurrence committed by them and pleaded that they were innocent. The learned Trial Court after conducting the full-fledged trial passed the impugned judgement of conviction and order of sentence, which is under challenge in this appeal. 5. At the very outset the learned defence counsel appearing on behalf of the appellants has submitted that the appellants of Cr. Appeal (S.J.) No. 51 of 2011 were released on admonition under Section 3 of the Probation of Offenders Act after recording the conviction for appellant No. 1 & appellant No. 3 for the offence punishable under Section 341 of the Indian Penal Code and for appellant No. 2 for the offence punishable under Section 323 of the Indian Penal Code and therefore, the appellants do not want to argue this case on merit and accordingly they want to withdraw this appeal. 6.
Decision
Accordingly, this appeal (Cr. Appeal (S.J.) No. 51 of 2011) is disposed of as withdrawn. 7. Further the learned counsel appearing on behalf of the appellant in Cr. Appeal (S.J.) No. 52 of 2011 submitted that the appellant was convicted for the 4 Cr. Appeal (S.J.) No. 52 of 2011 With Cr. Appeal (S.J.) No.51 of 2011 offence punishable under Sections 307 and 323 of the Indian Penal Code and after recording the conviction, the appellant Md. Yunus was sentenced to undergo rigorous imprisonment for three months for the offence under Section 323 of the Indian Penal Code and further he was directed to undergo rigorous imprisonment for two years and six months and to pay a fine of Rs.5,000/- for the offence under Section 307 of the Indian Penal Code and in default of payment of fine the appellant was directed to further undergo rigorous imprisonment for one month and all the sentences were directed to run concurrently. Arguments advanced on behalf of appellant- 8. Learned counsel appearing on behalf of the appellant of Cr. Appeal (S.J.) No. 52 of 2011 has submitted that the appellant does not want to argue this case on merit and therefore he wants to confine his argument only on the point of sentence. It has been pointed out that this occurrence has taken place as far back as in the year 2003 and the appellant has been suffering the trauma and misery of the criminal prosecution for a long period of time since the year 2003. It has further been pointed out that there is no criminal history against this appellant. Further it has also been pointed out that the said occurrence has taken place between both the parties due to the landed property dispute which is an admitted fact. Further, it has also been pointed out that there is case and counter-case between both the parties and vide Exhibit-B/1, it has been pointed out that the appellant had also sustained injuries in the said incidence. Further it has been pointed out that there was dispute with respect to a house in which the appellant was living and the informant had started claiming over the said house but he did not show any chit of paper with respect to the right, title and possession over the said house. Further it has also been pointed out that there is no independent witness to support the statement of the informant and without proper application of judicial mind the learned Court below has convicted the appellant for the offence punishable under Section 307 of the Indian Penal Code and utmost it is a case of Section 323 of the Indian Penal Code under which the appellant has also been convicted. Further the learned Trial Court did not appreciate the evidences in the right perspective adduced on behalf of the appellant by oral and documentary evidences where D.W.-1, Dr. Raghunath Singh who is the doctor and who has been examined during course of the trial and has proved the injury reports (Exts. B, B/1) 5 Cr. Appeal (S.J.) No. 52 of 2011 With Cr. Appeal (S.J.) No.51 of 2011 of the injured Mariam Khatoon and Yunus Parvez and D.W.-2, Saiyad Noor Mohammad was also the doctor who has proved the injury report (Ext.B/2) of Mehroon Khatoon. Further, D.W.-3, Rajnath Rai is a formal witness who has proved so many documentary evidences including Exhibit-C and Exhibit-D series adduced on behalf of the appellants to establish that it was basically a landed property dispute between the parties but all these things have not been taken into consideration that it is a pure landed property dispute. Further, it has also been pointed out that only three persons were injured i.e. P.W.-1, P.W.-3 and P.W.-5 and they have sustained simple injuries and therefore, the intention or knowledge in order to constitute the offence under Section 307 is also not made out and accordingly, it is urged on behalf of the appellant that let a lenient view be taken in order to award the sentence. Arguments advanced on behalf of State- 9. On the other hand the learned counsel appearing on behalf of the State did not controvert the fact that the injuries which have been sustained by the informant’s people in the present case were simple in nature including P.W.-1, P.W.- 3 and P.W.-5 and further it is also not disputed that both the parties were on inimical terms and there was a landed property dispute between them and there had been case and counter-case between both the parties for which a number of documents have been adduced by the appellants in their defence also and in this view of the matter an appropriate order may be passed on the point of sentence in as much as the appellant does want to argue this case on merit and therefore, the judgement of conviction passed by the learned Court below may be confirmed and the sentence may be modified accordingly. APPRAISAL & FINDINGS 10. Having heard the parties, perused the records of these cases including the Lower Court Record. 11. It is found in this case that the appellant of Cr. Appeal (S.J.) No. 52 of 2011 has been convicted for the offence punishable under Sections 307 and 323 of the Indian Penal Code and it is an admitted case of the prosecution that there is enmity between both the parties and in this background it is found that there is case and counter-case between both the parties and a number of people have been injured on 6 Cr. Appeal (S.J.) No. 52 of 2011 With Cr. Appeal (S.J.) No.51 of 2011 the appellant’s side also as evident from the evidences adduced by the defence in the course of trial which is Exhibit-B series. Further a number of documents have also been adduced on behalf of the defence in order to show that there was a landed property dispute between both the parties. There is nothing on the record to show about their criminal history and this case is lingering for a long period of time since the year 2003 and the appellant has been suffering the agony and hardships of criminal prosecution for a long period of time and in this view of the aforesaid mitigating factors the sentence of imprisonment as awarded by the learned Trial Court deserves to be modified. 12. Accordingly, the judgement of conviction dated 06.12.2010 for the offence punishable under Sections 307 and 323 IPC passed against this appellant by the Court of the learned Additional Sessions Judge, FTC-III at Hazaribagh in Sessions Trial No. 302 of 2004, arising out of Sadar P.S. Case No. 190 of 2003, corresponding to G.R. No. 1082 of 2003, is hereby confirmed. And so far as sentence is concerned in view of the aforesaid facts and circumstances of this case it is found that no useful purpose would be served to send the appellant again in jail and the purpose of justice would be meted out if the appellant is sentenced to the imprisonment for the period already undergone by him and further a reasonable amount of sentence of fine is imposed in order to give it to the injured persons by way of compensation. Accordingly the appellant is sentenced to imprisonment for the period already undergone by him and further the appellant is sentenced to pay fine to a sum of Rs.5,000/-(Rupees five thousand only) in order to give it to P.W.-5 Md. Ramzan Ali. 13. Since the appellant is on bail and therefore, four months’ time is granted to him to pay the aforesaid fine and in default of payment of fine he is directed to undergo simple imprisonment for two years. The appellant may deposit the fine amount through the Nazarat of the concerned Civil Court in order to give it to the informant P.W.-5, Md. Ramzan Ali, by way of compensation. 14. The learned trial court is directed to ensure that the said fine amount is deposited within the stipulated period of time and if the same is not deposited by the appellant, then the appellant will serve the sentence as awarded in case of default of payment of fine by taking all necessary measures as per the provisions of law to ensure that the appellant serves the sentence of imprisonment in case of 7 Cr. Appeal (S.J.) No. 52 of 2011 With Cr. Appeal (S.J.) No.51 of 2011 default of payment of fine. 15. The appellant may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment the appellant deposits the fine amount, he (the appellant) shall be released forthwith on deposit of the said fine amount and he shall be released and/ discharged from the liabilities of bail bonds accordingly. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice will be sent to the informant P.W.-5, Md. Ramzan Ali, and on his appearance, the said fine amount, if so deposited by the appellant, shall be disbursed to him. In case, if the said victim P.W.5 is not traceable or not available or not found at the given address, or does not appear before the court, the same shall be disbursed to the close or near relatives or kith and kin of the said victim/informant Md. Ramzan Ali, as the concerned learned trial court may deem fit and proper, and in this regard the court concerned may also involve the Para Legal Volunteer (PLV) of District Legal services Authority (DLSA), Hazaribagh, if required. 16. Accordingly, this appeal (Criminal Appeal (S.J.) No. 52 of 2011) is dismissed with modification in the order of sentence as above. Let the Lower Court Records and the copy of judgement be also transmitted to the learned Court below for its compliance in letter and spirit. 17. Accordingly, both the appeals are disposed of as above. 18. Let the Lower Court Records be sent back to the Court concerned. 19. Let a copy of this judgement be transmitted to the Member Secretary, JHALSA, Ranchi in order to ensure the payment of the professional fees to the learned Amicus Curiae, Mr. Kumar Saurav, Legal Aid Defence Counsel, in the light of the order dated 07.11.2022 passed by this Court. D.S./J.Minj (Navneet Kumar, J.)