Kumhra Kol, P.O.+ P.S. Pathargama, District Godda Ikram @ Md. Ikram, S/o Md. Muslim v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) (Against the judgment of conviction dated 30.06.2015 and the order of sentence dated 01.07.2015 passed by Sri Pankaj Kumar, District and Additional Sessions Judge-III, Godda in S.T. No. 86 of 2004/11 of 2014.) Criminal Appeal (DB) No. 504 of 2015 Badruddin, S/o Late Seikh Sirajuddin 1. 2. Matina @ Matua @ Mustakin, S/o Islam 3. All are residents of Village: Kumhra Kol, P.O.+ P.S. Pathargama, District Godda Ikram @ Md. Ikram, S/o Md. Muslim ... … Appellants Versus The State of Jharkhand …. ... Respondent Criminal Appeal (DB) No. 510 of 2015 With 1. Jakir, S/o Sheikh Maniruddin 2. Murshid @ Mursha, S/o Islam Both are residents of Village: Kumhra Kol, P.O. + P.S. Pathargama, District Godda ... … Appellants Versus The State of Jharkhand …. ... Respondent Criminal Appeal (DB) No. 538 of 2015 With Islam, S/o Late Seikh Amin 1. 2. Muslim, S/o Seikh Amin 3. All are residents of Village: Kumhra Kol, P.O.+ P.S. Pathargama, District Godda Batua @ Irfan, S/o Islam: ... … Appellants Versus The State of Jharkhand …. ... Respondent CORAM: HON'BLE THE ACTING CHIEF JUSTICE
Legal Reasoning
HON'BLE MR. JUSTICE NAVNEET KUMAR For the Appellants For the State : Mr. Ashish Kumar Thakur, Advocate : Mr. Abhay Kumar Tiwari, APP [in Criminal Appeal (D.B.) No. 504/2015] Mr. Saket Kumar, APP [in Criminal Appeal (D.B.) No. 510/2015] Mr. Satish Prasad, APP [in Criminal Appeal (D.B.) No. 538/2015] ----- 15th April 2024 Per, Shree Chandrashekhar, A.C.J. These criminal appeals were pending in this Court for disposal for a long time and at the instance of the Registry were listed on 9th April 2024 under the heading for “Orders”. 2. Thereafter, these criminal appeals were listed on 10th April 2024. Mr. Satish Prasad, the learned APP has informed the Court that Islam, son of late Seikh Amin, who is appellant No. 1 and Muslim, son of late Seikh Amin, who is appellant No. 2 in Criminal Appeal (DB) No. 538 of 2015 have passed away. The learned APP refers to the communication dated 8th April 2024 from the Jail Superintendent, Dumka to apprise this Court about the total period of custody undergone by the appellants in these Criminal Appeals. 3. In S.T No. 86 of 2004/11 of 2014, Islam and Muslim were convicted under sections 147, 148, 149, 307, 323, 324, 325 of the Indian Penal Code and under section 27 of the Arms Act. They were awarded the punishment of R.I. for one year each for committing offence under sections 147, 148, 323/149, 324/149, 325/149 of the Indian Penal Code and further R.I. for 10 years with fine of Rs. 10,000/- each under sections 307/149 of the Indian Penal Code and in default of which to undergo S.I for six months. They were also sentenced to R.I. for 3 years with fine of Rs. 5,000/- each under section 27 of the Arms Act and in default of which to undergo S.I for six months. 4. Sub-sections 2 of section 394 of the Code of Criminal Procedure provides that on death of the convict the appeal shall not abate if he was awarded the punishment of fine. However, a statutory period of limitation has been provided under proviso to sub-section 2 to Section 394 of the Code of Criminal Procedure for filing an application for substitution. The learned APP has appraised this Court that the appellants, namely, Islam and Muslim passed away way back in the year 2021-2022. However, the legal heirs/successors or any of the relatives of these convicts have not preferred any application for substitution and while so, Criminal Appeal 2 Cr. Appeal (DB) No. 504/2015 & analogous (DB) No. 538 of 2015 shall abate qua Islam and Muslim. 5. The appellants in these criminal appeals faced the trial in S.T No. 86 of 2004/11 of 2014 and by a common judgment dated 30th June 2015 they were convicted by the District and Additional Sessions Judge-III at Godda. Therefore, we have decided to hear these criminal appeals together and proposed to dispose of by a common order. 6. Badruddin, Islam, Murshid, Batua, Jakir, Muslim, Matina and Ikram were charged under sections 147, 148, 149, 307, 323, 324, 325 and 379 of the Indian Penal Code and under section 27 of the Arms Act for rioting with deadly weapons, causing hurt voluntarily by dangerous weapons to Md. Razzak and his brother Md. Naimuaddin and attempt to commit their murder by firing at them through a countrymade pistol. By a judgment of conviction dated 30th June 2015 and the order 7. of sentence dated 1st July 2015 the above-named accused persons were convicted and sentenced for the aforesaid offences in the following manner: Name of Accused Convicted Sentence 1. Badruddin, Sections 147, 148, R.I. for one year each for 2. Matina @ Matua @ 149, 307, 323, 324, committing offence under Mustakin, 325 of the Indian sections 147, 148, 323/149, 3. Ikram @ Md. Ikram Penal Code and 324/149, 325/149 I.P.C. and R.I. 4. Jakir under section 27 of for three years for committing 5. Murshid @ Mursha the Arms Act. offence under section 27 of the 6. Islam 7. Muslim 8. Batua @ Irfan Arms Act with a fine of Rs. 5000/- in default of which they will serve S.I. for six months each. Further, R.I. for ten years for committing offence under section 307/149 IPC with fine of Rs. 10,000/- each payable to the victim and injured persons for compensating the medical expenses, incurred by them and in default S.I. for six months. 3 Cr. Appeal (DB) No. 504/2015 & analogous 8. Pathargama (Basantrai) P.S. Case No. 88 of 2003 was registered on 26th June 2003 against 11 persons for committing the offence under sections 147, 148, 149, 323, 324, 307 and 379 of Indian Penal Code and under section 27 of the Arms Act. However, after the investigation a charge- sheet was laid only against abovenamed accused persons who faced trial in S.T No. 86 of 2004/11 of 2014. 9. During the trial, the prosecution examined nine witnesses including Md. Naimuddin and Md. Razzak who are the injured witnesses. These victims were examined by Dr. Ram Prasad Singh, who rendered his opinion that the victims had suffered injuries with a sharp cutting weapon and hard and blunt substance. 10. The trial Court has held as under: “28. The witnesses examined by the prosecution have consistently stated before this court that they are the original resident of village Simra, presently they are staying at Kumhra Kol. A land dispute is pending between the parties as per document filed by both sides on record. 29. The Id. Defence counsel has argued before this court that all witnesses examined by the prosecution are related witnesses. As such, their evidence cannot be relied upon. This fact has not been denied by the prosecution in their statement before this court that they have stated that villagers are not cooperative with them and when the police arrived at the place of occurrence on information, the female members have requested the I.O. to take their husband for treatment. It also appears in para-3 of the case diary. It is apparently clear the victim and informant are not resident of village Kumhra Kol, rather they are staying in connection with land standing in the name of their grand mother, for which title appeal has been decided in their favour. 30. The Id. Defence counsel has further submitted before this court that all the persons might have sustained injuries by some other persons for that the accused persons have been falsely implicated, which is not a case of the prosecution as P.W.-9 Vibhuti Narain Mishra has found pillate engraved in wall of the victim cum informant's house, for which the seizure list was prepared, which has been marked as Ext. 8. He has found blood stained soil at the Angan and in front of the door, showing that the accused persons are the aggressors, who have chased the informant Md. Razzak and injured Niamuddin. Murshid have fired on informant Md. Razzak and on Niamuddin, who have providentially escaped from the gun fire. Islam gave garasa blow on the head of Naimuddin and Muslim gave garasa blow to Md. Razzak. All of them have sustained cut injury on the forehead of Naimuaddin and Md. Razzak. This fact has been supported by the prosecution as per statement of P.W.-8 on the record, who has identified the injury reports which have been marked as Ext.6 and 7 respectively. The respective three X-Ray report has been identified and marked as Ext. P/1, P/2, P/3 respectively. In the cross-examination by the Id. Defenc counsel, P.W.-8 has shown ignorance with the X-Ray plate for which stands. Although, cover page of these X-Rays reports shows the name of Md. Naimuddin and Md. Muslim(one of the accused). 4 Cr. Appeal (DB) No. 504/2015 & analogous 31. P.W.-8 has found fracture on finger of Naimuddin and of Md. Razzak. He has stated before this court that the (cut) injuries were simple in nature and has found grievous injuries on the body of Naimuddin as Ext. 6 on record. The intention of the accused persons can be gathered in the manner of occurrence as they have chased the informant cum victims inside the house and fired on them from which they escaped and have given garasa blow on the forehead to Naimuddin and Md. Razzak. On fall, they have given lathi and danda blow causing compound fracture at three places on the left forearm of Naimuddin. 32. An affidavit sworn by Md. Allauddin before the Notary Public Delhi, has been marked as Ext. J, with regard to showing the alibi of accused Mustkim. Although, Md. Allaudin has not been examined by the Id. Defence counsel in support of their case to show their alibi. A photocopy similar affidavit before the Notary Public Delhi has been filed by the same Md. Allaudin with regard to duty of Irfan (accused) on 25.06.03. Although, this fact has not been brought on record to substantiate deliby accused Irfan. 33. The Id. Defence counsel has submitted before this court that I.O. of this case has not been examined and the materials have not sent to the forensic laboratory for testing. This fact has been explained by P.W.-9 in his statement before this court as he has stated before this court that due to transfer, he could not forward the seizure articles to the concerned forensic laboratory. 34. The Id. Addl. P. P has submitted before this court that this is not a case as possession of illegal arms, rather it is a case of firing in contravention of Section-5 of the Arms Act. As such, non testing of the pillets by the forensic lab is not fatal in the present case. 35. The Id. Defence counsel has further submitted before this court that the blood stained soil and clothes has not been produced by the I.O. causing prejudice to them. 36. The Id. Addl. P. P has submitted before this court that the injury of the victim Md. Razzak and Niamuddin are not in dispute. It has been stated by the Medical Officer at Pathargama Hospital, for which medical reports have been issued by the concerned doctor, which has been marked as Ext.- 6 and 7 respectively and in this regard, non production of blood stained cloth and soil is not fatal. Although, in the Ferd beyan altogether eleven witnesses have been named as accused persons out of them female members have not been charge-sheeted in this case. The witnesses examined before this court have given contradictory statement with regard to person who took away the articles kept in their house. 37. The Id. Addl. P.P has submitted before this court that witnesses examined by the prosecution are trust worthy and reliable. There is no major omission or contradiction or improvement in their depositions. As such, the prosecution has proved the offences beyond all reasonable doubts. He has further submitted before this court that the common object of all the accused persons may be gathered from the spur of the moment. As all of them chased the informant and victim (till) inside the house. As such, it can be safely said they have the common object to commit offence as alleged against them. 38. The Id. Addl. P.P has further submitted before this court that while considering U/S- 307 IPC, the important thing to be born in mind to come to the conclusion whether the accused persons had intention to commit murder of the injured and informant and not the injury sustained by them. Although, they have sustained head injury by sharp cutting weapons and other injuries sustained by the victim (Naimuddin) are said to be grievous in nature. In this circumstances, it can be safely said that the accused 5 Cr. Appeal (DB) No. 504/2015 & analogous persons have attempt to commit murder to the informant and victim in this case, as they have left them after they became unconscious, after sustaining injuries caused by them. 39. In the facts and circumstances of this case, I am of the view that there is consistent statement of the witnesses on record, who substantiate the charges against the accused persons U/Ss- 147, 148, 149, 307, 323, 324, 325 IPC read with 27 Arms Act, on basis of positive materials on record. 40. Accordingly, prosecution has proved charges against the accused persons Badruddin, Islam, Murshid, Batua @ Irfan, Jakir, Muslim, Matina @ Mustkin, Ikram U/Ss- 147, 148, 149, 307, 323, 324, 325 IPC read with 27 Arms Act. The accused persons are not found and held guilty for allegedly committing offence U/S-379 IPC, on basis of material evidence on record and contradictory statement of witnesses with regard to manner of theft. They are found and held guilt guilty for allegedly committing offence U/Ss- 147, 148, 149, 307, 323, 324, 325 IPC read with 27 Arms Act and their bail bonds are hereby cancelled and they are taken into custody. Put up on 01.07.2015 for hearing on point of sentence.” 11. The case of the prosecution is that on 25th June 2003 the accused persons armed with deadly weapons came inside the house of the informant and mounted murderous attack on him. In his fardbeyan, Md. Razzak made an allegation that Jakir instigated Murshid who fired at Naimuddin. P.W 1 and P.W 5 who were injured in the occurrence are the best persons to tell the Court how the incident had happened on the fateful day. The testimony of the injured witness may not be put on a higher pedestal but then the testimony of injured witness provides assurance to the Court that he was present at the place of occurrence and he would give a narration of the occurrence truthfully. 12. In “State of Maharashtra v. Tulshiram Bhanudas Kamble” (2007) 14 SCC 627 the Hon’ble Supreme Court has observed as under: “29. …. The witnesses examined on behalf of the prosecution, apart from being eyewitnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidence. Although in accepting the same, some amount of caution is required to be maintained. …………………………………………………………………………… 39. Though it is true that it is not necessary to invariably accept the version of the injured witnesses but it is well settled that greater weight has to be given to the testimony of the injured witnesses. We see no reason to disbelieve them and we agree with the view taken by the trial court. (See Nain Singh v. State of U.P, State of Punjab v. Gurmit Singh and Ramappa Halappa Pujar v. State of Karnataka.)” 13. P.W. 2 Bibi Jaitun, P.W. 3 Md. Kalimuddin and P.W. 4 Bibi Sanjida are closely related to the injured witnesses. This is the case of the 6 Cr. Appeal (DB) No. 504/2015 & analogous prosecution that there had been a long standing dispute between the parties and they were litigating in the Court. In Paragraph No. 16 of the Judgment, the Sessions Judge referred to the judgment passed in PCR Case No. 2 of 2003, judgment dated 20th April 2012 in G.R Case No. 659 of 2003/T.R No.117 of 2012, order dated 3rd January 2012 passed by S.D.O., Godda in Misc. Case No. 96 of 2006-2007 which were marked as Exhibit Nos. 9, 10 and 11. On the other hand, the accused persons set up a plea of false implication on the ground that several civil and criminal cases were pending between the parties. In Paragraph No. 20 of the Judgment, the District and Additional Sessions Judge referred to Pathargama (Basantrai) P.S. Case No. 40 of 2003, Pathargama (Basantrai) P.S. Case No. 91 of 2003, PCR Case No. 02 of 2003, Title Suit No. 32 of 2002, Godda (T) PS Case No. 219 of 2013, Pathargama (Basantrai) P.S. Case No. 01 of 2015 which were laid in evidence on behalf of the accused persons. 14. The requirement of law is that the testimony of inimical witnesses has to be considered with caution. But if otherwise the witnesses are true and reliable their testimony cannot be thrown out at the threshold by branding them as inimical witnesses. By now it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication and it can also be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In “Dinesh Kumar v. State of Rajasthan” (2008) 8 SCC 270 the Hon’ble Supreme Court observed that when the witnesses are stated to be interested and inimically deposed towards the accused it has to be remembered that they would not shield the real culprit and rope in innocent person. 15. Now in the context of the evidence of the prosecution witnesses, we find that the prosecution witnesses remained consistent to their stand as regards the weapons held by the appellants. According to the related witnesses, Badruddin, Matina and Ikram were holding Lathi. P.W. 8 also recorded his observation that P.W. 1 and P.W. 5 had made complaints of severe body pain. 7 Cr. Appeal (DB) No. 504/2015 & analogous 16. Jakir and Murshid are the accused persons who according to the prosecution fired from countrymade pistols. 17. Islam and Muslim who passed away during pendency of the criminal appeal are said to have assaulted P.W. 1 and P.W. 5 with Garasa. 18. P.W. 8, Dr. Ram Prasad Singh tendered evidence in the Court that on 25th June 2003 he examined Naimuddin around 5:35 P.M. and found the following injuries on his person: “(i) A sharp cut wound of size 2"x1/2"x1/4” on forehead touching scalp. Swelling 6"x4" having inside it a lacerated wound of size (ii) 1/2"x1/2"x1". This injury was on right elbow and fore-arm. In addition there was also compound fracture of ulna and dislocation of radius at elbow joint. Swelling 5"x4" with laceration of 1/2"x1/2"x1½” on left forearm (iii) with compound fracture of radius. (iv) Swelling 2"x2" on the dorrom of left arm and ring finger with fracture of first phalagiel bone at the prorumal end. (v) Injured was complaining pain in entire body.” 19. The doctor examined Md. Razzak at 5.45 P.M. and found the following injuries on his person: Sharp cut wound of size 1-1/2"x3-1/2”x1/2" on scalp. The flap of Lacerated wound 1½-1/2”x1/2"x1/2" and swelling on the back of (i) skin turned onwards forehead, (ii) right forearm and elbow, (iii) (iv) Swelling 4"x2" in front of left thigh and Complaining of pain at chest. 20. According to P.W. 8, the injury Nos. (ii), (iii) and (iv) to Naimuddin were caused by hard and blunt substance. He further stated that the injury Nos. (ii) and (iii) found on the person of Md. Razzak were caused by hard and blunt substance. 21. The prosecution has set up a case that the appellants formed unlawful assembly with an intention to commit murder of P.W.1 and P.W.5. However, from the prosecution evidence it is not established that the common intention of the unlawful assembly was to attempt to murder. If at all, Jakir and Murshid were carrying countrymade pistols and fired upon the prosecution witnesses, they could have made a second attempt to kill P.W.1 and P.W.5. This is also established from the evidence of P.W. 8 that there was no repeat attempt by Islam and Muslim with Garasa which caused one sharp cut wound each to P.W. 1 and P.W. 5. In “Lalji v. State of U.P” 8 Cr. Appeal (DB) No. 504/2015 & analogous (1989) 1 SCC 437 the Hon'ble Supreme Court observed that vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. 22. In “Joseph v. State Rep. by Inspector of Police” (2018) 12 SCC 283 the Hon'ble Supreme Court has held as under: “11. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts: 11.1. The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. 11.2. The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed. 11.3. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established.” 23. On the basis of the injuries caused to P.W. 1 and P.W. 5, it can be safely held that the accused who caused the grievous injuries with sharp cutting weapon shall be liable to be convicted under sections 307 and 325 of the Indian Penal Code. However, Islam and Muslim who were said to be carrying Garasa passed away and the other appellants were not carrying any sharp cutting weapon. 24. While so, conviction of the appellants under sections 307/149 and 325/149 of the Indian Penal Code is set aside. 25. However, the conviction of the appellants under sections 147, 323/149 and 324/149 of the Indian Penal Code is upheld. Their conviction under section 148 of the Indian Penal Code is set aside as the conviction of an accused cannot be maintained both under sections 147 as well as 148 of 9 Cr. Appeal (DB) No. 504/2015 & analogous the Indian Penal Code [refer, "Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel" (2018) 7 SCC 743]. 26. Having regard to the mitigating circumstances in the case such as: (i) enmity between the parties, (ii) long standing dispute and the history of litigation and (iii) pendency of the criminal case for about two decades, while upholding the sentence awarded to the surviving appellants under sections 147, 148, 323/149 and 324/149 of the Indian Penal Code, we modify the punishment awarded for the said offences to the periods already undergone (which is more about one year with remission) with fine of Rs. 15,000/- each; that shall be paid to P.W. 1 and P.W. 5 within six weeks. 27. On failure of the appellants to pay the fine amount they shall surrender in the Court concern to suffer S.I. for 3 months. 28. The appellants, namely, Badruddin, Matina @ Matua @ Mustakin, Ikram @ Md. Ikram, Jakir, Murshid @ Mursha and Batua @ Irfan are on bail. They are discharged of liability of the bail-bonds furnished by them. 29. These criminal appeals are partly allowed in the aforesaid terms. 30. Let the Trial Court records be transmitted to the Court concerned, forthwith. 31. Let a copy of the Judgment be transmitted to the Court concerned through FAX. (Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) VK/Rahul N.A.F.R. 10 Cr. Appeal (DB) No. 504/2015 & analogous