The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 475 of 2005 ---- (Against the judgment of conviction and order of sentence dated 15.04.2005 passed by learned 2nd Additional Sessions Judge, (Fast Track Court), Jamtara in Sessions Case No. 453/1992/138 of 2002) 1. Sahadat Mian 2. Murshed Mian 3. Hamruddin Mian 4. Bhutka Mian 5. Abdul Samad 6. Budhu Mian The State of Jharkhand --- -Versus- with ....Appellants ....Respondent Cr. Appeal (SJ) No. 487 of 2005 ---- (Against the judgment of conviction and order of sentence dated 15.04.2005 passed by learned 2nd Additional Sessions Judge,(Fast Track Court), Jamtara in Sessions Case No. 453/1992/138 of 2002) 1. Sultan Mian 2. Butan Mian 3. Mazamil Hussain --- The State of Jharkhand -Versus- ....Appellants ....Respondent
Legal Reasoning
--- CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN --- For the Appellant : Mr. Jitendra S. Singh, Advocate Mr. K.K.Mishra, Advocate For the Respondent : Mr. Azeemuddin, A.P.P. 05/22.11.2023 Heard learned counsel for the parties. Mr. J. Pandey, A.P.P -- 2. Both the appeals arise out of common impugned judgment; as such both are heard together and disposed of by this common judgment. Cr. Appeal (SJ) No. 475 of 2005 3. This appeal is directed against the judgment of conviction and order of sentence dated 15.04.2005 passed by learned 2nd Additional Sessions Judge, (Fast Track Court), Jamtara in Sessions Case No. 453/1992/138 of 2002, whereby the appellants were convicted for the offence punishable under Section 148,452,427,341,307/34, 323/34 & 324/34 of I.P.C and were sentenced to undergo R.I. for 2 years each under Section 148 of I.P.C; R.I. for 1 year each under Section 2 323/34 of I.P.C; R.I. for 2 years each under Section 324/34 of I.P.C; R.I for 1 year each under Section 427 of I.P.C; R.I. for 3 years each under Section 452 of I.P.C; R.I. for 7 years each under Section 307/34 of I.P.C and R.I. for 1 months under Section 341 of I.P.C. It was further ordered that all the sentences shall run concurrently. Learned counsel for the appellant submits that as per the service report, the appellant no. 6, Budhu Mian died; as such this appeal may be dismissed as abated. In view of the aforesaid fact, this appeal is dismissed as abated as against the appellant no. 6, Budhu Mian. Cr. Appeal (SJ) No. 487 of 2005 4. This appeal is directed against the judgment of conviction and order of sentence dated 15.04.2005 passed by learned 2nd Additional Sessions Judge, (Fast Track Court), Jamtara in Sessions Case No. 453/1992/138 of 2002, whereby the appellants were convicted for the offence punishable under Section 148,427&341 of I.P.C and were sentenced to undergo R.I. for 2 years each under Section 148 of I.P.C; R.I. for 1 year each under Section 427 of I.P.C; R.I. for 1 month each under Section 341 of I.P.C. Learned counsel for the appellant submits that as per the service report the appellant no. 3, Mazamil Hussain died; as such this appeal may be dismissed as abated. In view of the aforesaid fact, this appeal is dismissed as abated as against the appellant no. 6, Mazamil Hussain. 5. The prosecution case in brief is that on 31.08.1991 the informant was constructing the wall over the land in front of his house. At the same time, the accused persons, Sarfuddin Mian, Sultan Mian, Sahadat Mian, Murshed Mian, Moti Mian, Hamruddin Mian, Motka Mian, Butan Mian, Samad Mian, Muxamil Mian and Borho Mian came there. One of the accused, Sarfuddin Mian asked to stop the construction, but the informant refused to stop the construction, then all the accused persons started damaging the wall. When the informant protested then accused Sarfuddin Mian assaulted him by axe on his head and he sustained injuries on head. When the informant fled away in the courtyard of the house in order to save himself, then all the accused persons came there and assaulted him with lathi and stones. On seeing him, the brothers of 3 the informant came there and were also assaulted by the accused with lathi and stones. The accused Sarfuddin Mian and Sahadat Mian were instigating to other accused persons to kill them. 6. Learned Counsel the appellant made for the following submissions: (i) The findings of the trial court is perverse and the same is fit to be set aside. (ii) Learned trial court failed to appreciate that the parties were an inimical terms and they were at litigating terms. (iii) The learned trial court failed to appreciate that the injuries found on the person of the informant party are simple in nature and there was no intention to cause murder therefore, the conviction under Section 307 of I.P.C is liable to be set aside. (iv) All the prosecution witnesses are interested, partisan witnesses and therefore conviction based on their deposition only is not proper. (v) Learned counsel for the appellants further submits that as per Fardbeyan, the main allegation was against Sarfuddin Mian, who assaulted the informant, Daud Ansari by axe on his head and the allegation against the other appellants is that they assaulted the informant with lathi and stones. However; since the main assailant, Sarfuddin Mian had died during pendency of trial; as such the conviction under Section 307/34 and 324/34 and Section 148 of I.P.C be set aside. After the aforesaid submission, learned counsel for the appellant submits that after setting aside the conviction under Sections 307/34 and 324/34 of I.P.C, the sentence imposed for other sections be modified for the period already undergone as all the appellants remained in custody for some days and there is no criminal antecedent of the appellants. 7. Learned A.P.P opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedent of the surviving appellants. 8. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it appears that in F.I.R the main assailant has been shown to be Sarfuddin 4 Mian, who assaulted the informant with axe on the head and the said Sarfuddin Mian had died during pendency of trial itself. So far as allegation against the other appellants are concerned, it was for using lathi and stones in assaulting the informant, though in the deposition of the informant he improvised his previous statement made in the F.I.R and deposed that Sahadat also assaulted with Farsa. Here, it is a clear contradiction/improvisation from the statement made in the F.I.R and the deposition during trial. Further, no plausible reason has been given by the informant that why he had improvised his statement from F.I.R vis- a-vis his deposition. As aforesaid, the allegation against the other appellants were only for assaulting with lathi and stones and further the improvised allegation against Sahadat that he used Farsa in assaulting the informant. It is to be noted that no Farsa or Tangi have been seized by the prosecution. Further, the prosecution has also failed to prove the common/mutual intention and object to disturb peace and also formation of unlawful assembly for the purpose of rioting. Non seizure of Farsa & Tangi further weakens the case of the prosecution. Looking to this infirmity and the discussions made hereinabove, this Court feels that the conviction under Section 307/34 and 324/34 & 148 of IPC be set aside. Ordered accordingly. However, so far as conviction under Section 452, 427, 341 and 323/34 is concerned; prosecution has considerably proved the case with cogent evidence; as such conviction under the aforesaid sections are hereby sustained. 9. Now coming to the last contention of the appellant that after setting aside the major sections for which the accused persons were convicted, for other section the sentence awarded to them may be modified for the period undergone. Thus, on the point of sentence, looking to the entire facts and circumstances of the case and also the fact that the alleged incident took place in the year 1991 and about 31 years have passed and that period is sufficient to exhaust anybody mentally, physically and economically and the appellants in Cr. Appeal (SJ) No. 475 of 2005 were in jail for some days and the appellants in Cr. Appeal (SJ) No. 487 of 2005 were all along 5 on bail and they have never misused the privilege of bail and now they are not involved in any criminal activities; thus, they have a chance to reform. 10. Taking into consideration of mitigating circumstances, I am of the considered view that without interfering with the judgment of conviction, except the conviction under Sections 452,427,341 & Section 323/34 of I.P.C; the sentence ought to be modified to the extent that the appellants shall be released for the period already undergone. As a result, the sentence as ordered by the learned trial court is hereby modified to the extent that the appellants are sentenced for the period already undergone. 11. With the aforesaid observations, directions and modification in
Decision
sentence only, the instant criminal appeals stand disposed of. 12. The appellants shall be discharged from the liability of their bail bond 13. Let the lower court record be sent to the court concerned forthwith. (Deepak Roshan, J.) jk