) --------- 1. Naushad Ansari 2. Razaque Ansari v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 1469 of 2004 (Against the judgment of conviction and order of sentence dated 19.07.2004 and 20.07.2004, respectively passed by the learned Sessions Judge, Seraikella-Kharsawan at Seraikella, in Sessions Trial No. 153 of 2000.) --------- 1. Naushad Ansari 2. Razaque Ansari ..… Appellants Versus The State of Jharkhand ...... Respondent With Cr. Appeal (SJ) No. 1470 of 2004 --------- 1.Md. Gulam Ansari 2.Md. Murtaza Ansari 3.Sultan Ansari Versus ..… Appellants The State of Jharkhand --------- ...... Respondent
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN --------- For the Appellant : Mr. A.K.Kashyap, Sr. Adv For the State Mr. P.S.Dayal, Adv. : Mr. Prabir Kr. Chatterjee, Spl. P.P Mr. Jitendra Pandey, APP --------- 07/Dated: 14th August, 2023 Heard learned counsel for the parties. 2. Since both these criminal appeals arise out of same judgment passed by the learned trial court, as such they are
Decision
heard together and disposed of by this common judgment. 3. Both these appeals have been preferred against the judgment of conviction and order of sentence dated 19.07.2004 and 20.07.2004, respectively passed by the learned Sessions Judge, Seraikella-Kharsawan at Seraikella, in Sessions Trial No. 153 of 2000; whereby the appellants were convicted under sections 307/149 IPC and sentenced to undergo R.I. for 7 years and appellant no. 1 and 2 (in Cr. Appeal No. 1470 of 2004) were further convicted under section 148 IPC and sentenced to R.I. for 2 years and appellant no.3 was also convicted under section 323 IPC and sentenced to R.I. for 6 months and it was further directed that all the sentences shall run concurrently. 4. The prosecution case in short is that on 09.10.1999 in 2 the evening at about 7.30 P.M., while Israiel Ansari was at his home, Naushad Ansari came and told that Hafiz from mosque was calling him, whereafter, the informant along with one neighbour went to meet Hafiz. When he reached the mosque, he found Gulam Ansari sitting there. There was discussion between them with regard to donation for the mosque. In the meantime, Gulam Ansari went away. Thereafter, all the accused persons came and started assaulting Kalimuddin Ansari, as a result of which he became unconscious. After that the appellants also assaulted the informant and son of Kalimuddin. 5. Learned counsel for the appellants submits that out of total 8 witnesses P.W.-2 was informant; however, he has been declared hostile for the reason that in his cross-examination he has categorically stated that on the instruction of police he has stated about the incident. He further submits that P.W.8 is the doctor and as per his opinion P.W.3 and P.W.6 has sustained injuries and the injury of P.W.6 was simple in nature and P.W.3 sustained three injures in which injury no. 1 and 3 was simple in nature and injury no.2 was grievous in nature as it was 7th ribs fracture right side. Relying upon the aforesaid submission learned counsel submits that since out of 10 accused persons five were acquitted and five were convicted and the prosecution has unable to prove specific charge against these appellants for the charge under section 307 IPC and looking to the injury report, interest of justice would be sufficed by acquitting these appellants from the charge under section 307 IPC and covert the conviction into lesser charge because admittedly, only one of the injury of P.W.3 was grievous in nature. He further submits that after converting the charge from 307 IPC to 325 IPC, the sentence for the same may be passed for the period already undergone as all the five appellants have served custody for about 4 to 5 months. 3 6. Mr. Prabir Chatterjee, learned Spl. P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants. However, he fairly submits that as per record, there is no any criminal antecedent of the appellant. 7. Having heard learned counsel for the parties and after going through the documents available on LCR, it appears that on 09.10.1999, when the informant was in his house, Nausad Ansari came to him and informed that Hafiz is calling him. Subsequent to that P.W.4 went their and found Gulam Ansari was already sitting there and both of them were engaged in taking regarding subscription of mosque. Gulam Ansari then went away from their and came with his brother- in-law and again went to the house of Kamluddin and finally there was heated discussion which led to the altercation and occurrence took place. From the entire prosecution case, it appears that the dispute was with regard to subscription of mosque. Nowhere in the deposition of either of the P.Ws, it has been proved that the appellants does the act with intention or knowledge to cause death of the injured. In other words, no intention or knowledge has been proved in the instant case to kill the injured persons. Further, from the injury report it clearly transpires that only P.W. 3 and 6 were injured and P.W.3 sustained three injuries in which only injury no.2 was grievous in nature and that too was fracture of 7th rib right side. So far as the injury of P.W.6 is concerned; there was two injuries and both were simple in nature. Thus, looking to the overall facts and circumstances of the case this court is of the view that the prosecution has not been able to prove the charge u/S 307 IPC beyond all shadow of reasonable doubts and the appellants deserve benefit of doubt so far as charge under section 307 IPC is concerned. 8. Now coming to the other charges, as aforesaid, P.W. 3 4 and 6 were injured witness and the doctor has given a categorical finding that injury no.2 of P.W.3 was grievous in nature. Thus, the presence of the accused persons at the place of occurrence and also the assault cannot be ruled out. As a matter of fact, the prosecution has considerably proved the presence as well as the assault of the P.W.3 and 6 by the appellants. Nevertheless, this court cannot ignore the cause of the fight which was with regard to the subscription of mosque. 9. Accordingly, this court is of the firm view that the appellants should be convicted for the offence under section 325 IPC. Consequently, the conviction under section 307 IPC is converted into section 325 IPC and rest all the charges and its conviction are, hereby, sustained. Further, for the offence under section 325 IPC; the appellants are sentenced for a period of R.I. for 3 years. 10. Now coming to the alternative argument of learned counsel for the appellants with regard to sentence awarded to them after converting the conviction u/S 307 IPC by a lessor punishment; this Court is of the view that at this stage remitting the appellants to the rigors of imprisonment at this juncture of their life would not serve the ends of justice. Admittedly; the appellant nos. 1 and 2 (in Cr. Appeal No. 1469 of 2004) remained in custody for about 125 days and appellants (in Cr. Appeal No. 1470 of 2004) remained in custody for about 110 days. 11. Thus, on 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 1999 and about 24 years have passed and that period is sufficient to exhaust anybody mentally, physically and economically and the appellants were also in jail for a considerable period 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. 5 12. Taking into consideration of mitigating circumstances, I am of the considered view that the sentence imposed by this court and the learned trial court ought to be modified to the extent that the appellants shall be released for the period already undergone, but subject to payment of fine of Rs. 10,000/-each. 13. As a result, the appellants are acquitted from the charge under section 307 IPC and convicted under section 325 IPC and all other charges are also, hereby, sustained and the sentence of the appellants, is, hereby modified to the extent that the appellants are sentenced for the period already undergone subject to payment of fine of Rs. 10,000/- each. 14. It is made clear that the appellants shall pay the aforesaid fine of Rs. 10,000/-each, within a period of 4 months from the date of receipt of copy of this order, before the D.L.S.A., Seraikella-Kharsawan; failing which they shall serve rest of the sentence as ordered by this Court. 15. With the aforesaid observations, directions and modification in sentence only, the instant criminal appeal stands disposed of. 16. The appellants shall be discharged from their liabilities of their bail bonds, subject to fulfillment of aforesaid condition. 17. Let a copy of this order be sent to the learned trial court, Secretary, DLSA, Seraikella-Kharsawan and also to the appellants of respective cases through the concerned police station. 18. The lower court record be sent to the court concerned forthwith. Amardeep/ (Deepak Roshan, J.)