The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB/SJ) No. 431 of 1993 (P) Against the judgment of conviction and order of sentence both dated 24.09.1993 passed by Shri Rajendra Prasad Rai, learned 1st Additional Sessions Judge, Sahibganj in Sessions Case No. 78 of 1987/116 of 1993. 1. Abul Sheikh (died) 2. Giyas Sheikh (died) 3. Mojahir Sheikh -- Versus ... ... ... Appellants The State of Bihar (now Jharkhand) ... ... ... Respondent --------- P R E S E N T
Legal Reasoning
SRI SANJAYA KUMAR MISHRA, C.J. For the Appellants: For the State: --------- Mr. Sunil Kumar Mahto, Advocate Mr. Abhay Kumar Tiwari, APP --------- 14/Dated: 11.08.2023 I.A. No. 4321 of 2018 By filing this Interlocutory Application, the learned counsel for the appellants has prayed to delete the name of appellant no. 2-Giyas Sheikh, as he has died in the meantime. Learned counsel for the State through the Assistant Sub Inspector of Police, Barhrwa Police Station, District Sahibganj, has also filed an affidavit to the effect that they verified and found that the said appellant has died. Thus, the appeal, as far as appellant no. 2-Giyas Sheikh is concerned, abates. It is also borne out from the records that the main accused-Abul Sheikh, who has been convicted for the offence of murder and sentenced to undergo imprisonment for life has already died in the case and his name has been deleted.
Decision
Accordingly I.A. No. 4321 of 2018 stands disposed of. Cr. Appeal No. 431 of 1993 1. Appellant no. 3-Mojahir Sheikh, his father Abul Sheikh and his brother Giyas Sheikh were chargesheeted for the offence under 2 Section 452 of the Indian Penal Code, 1860 (hereinafter referred to as ‘Penal Code’ for brevity), and the accused Abul Sheikh, since deceased, stood also charged for the offence under Section 302 of the Penal Code. After trial they have been convicted by the 1st Additional Sessions Judge, Sahibganj in Sessions Case No. 78 of 1987/116 of 1993 as per the judgment dated 24.09.1993. 2. The facts of the case may be described as follows :- The informant of this case is Jaibun Bewa, the mother of the deceased-Reyasat Sheikh, happens to be the sister of late appellant- Abul Sheikh. On 12.04.1986 at about 4:00 p.m., the accused Abul Sheikh suddenly entered into the house of the informant. Seeing him entering into the house, the informant and her other family members protested and they asked him to go out because he was of a very bad character. The informant’s son Reyasat Sheikh asked the accused Abul Sheikh to get out of his house. At that time, Abul Sheikh was in a very drunken condition and he could not get out of the house. In the meantime, the accused Giyas Sheikh and Mojahir Sheikh, sons of the accused-Abul Sheikh, came running to the house of the informant. Both the sons of Abul Sheikh entered into altercation with Reyasat Sheikh on the point as to why the informant and Reyasat Sheikh told their father to get out of their house. At that time all of sudden, Abul Sheikh, who was holding a Khoncha in his hand attacked Reyasat Sheikh on his head which caused a deep piercing injury leading to his death. Thereafter, information was lodged in the police station. The investigation of the case was taken up and upon completion of investigation, chargesheet was framed against the accused persons under Sections 448, 324, 326 and 302 read with Section 34 of the Penal Code. The First Information Report was registered against the accused under Sections 448, 324, 307/34 of the Penal Code. However, chargesheet was submitted under Section 302 and other Sections of the Penal Code, as stated in the preceding sentence. However, while framing charge, the learned Sessions Judge framed 3 charged under Section 452 of the Penal Code against the surviving appellant. In course of hearing, the appellants took the plea of denial and false implication. They pleaded not guilty of the offences as alleged. 3. In order to prove its case, the prosecution has examined altogether 16 witnesses. Since the main part of the prosecution allegation, i.e., the murder of the deceased is not required to be answered at this time because of the death of appellant no.1-Abul Sheikh, the learned counsel for the appellants would confine his argument to the conviction of the surviving appellant no. 3-Mojahir Sheikh under Section 452 of the Penal Code. 4. It is submitted on behalf of appellant no.3 even that if it is held that the prosecution has proved its case beyond all reasonable doubts against the surviving appellant an offence under Section 452 of the Penal code is not made out, as it is not the case of the prosecution that appellant no. 3, made any preparation before trespassing into the house of the deceased. Rather, he would submit that an offence under Section 448 of the Penal Code is at best made out. It is also borne out from the record that the offence took place on 12.04.1986 in the meantime 37 years have elapsed. At the time of commission of the offence, appellant no. 3 was 25 years old and now he is about 62 years old. Furthermore, from the evidence, it is clear that the witnesses have not stated that they have made preparation for commission of any offence or for assaulting any person or for wrongfully harming any person etc. So, the necessary ingredients that is required to be proved is that there should be a preparation before the house trespass for committing the offence(s). In this case, though the informant has taken that this appellant was holding a farsa it cannot be said that he had made preparation for making assault. In any case, the occurrence took place in spur of moment, therefore, this Court is of the opinion that the prosecution has not established its case beyond all reasonable doubts that the appellant made 4 preparations for committing assault prior to committing the trespass and hence, the conviction under Section 452 of the Penal Code is erroneous and the same is converted into a conviction under Section 448 of the Indian Penal Code. As stated above, in the meantime, 37 years have elapsed and now appellant no. 3 is more than 62 years of age. It is also borne out from the record that he was in custody during investigation and after conviction for a total period of two months. Keeping in view the facts of the case, this Court is of the opinion that the period undergone is sufficient to meet the ends of justice. 5. In that view of the matter, the appeal is allowed in part. The conviction of appellant No. 3-Mojahir Sheikh under Section 452 of the Penal Code is converted into conviction under Section 448 of the Penal Code and he is sentenced to the period already undergone. Appellant no. 3 is on bail. The appellant be set at liberty by cancelling his bail bond executed before the learned Trial Judge. 6. 7. Pending application, if any, stands disposed of. Records of the Trial Court be transmitted to it, forthwith, along with a copy of this judgment. (Sanjaya Kumar Mishra, C.J.) N.A.F.R. APK/VK