Jharkhand High Court
Saud Ansari vs The State Of Jharkhand on 18 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 115 of 2013
with
Criminal Appeal (DB) No. 71 of 2021
(Against the judgment of conviction dated 19.01.2013 and the order of sentence
dated 02.02.2013 passed by the learned Judicial Commissioner-XIII, Ranchi in Sessions
Trial No. 619 of 2003)
In Criminal Appeal (DB) No.115 of 2013:
1. Saud Ansari, s/o late Makbul Ansari, r/o village-Piru Tola, PO &
PS-Pithoria, District-Ranchi
2. Mahiuddin Ansari, s/o late Makbul Ansari, r/o village-Piru Tola, PO &
PS-Pithoria, District-Ranchi
3. Asimuddin Ansari, s/o late Makbul Ansari, r/o village-Piru Tola, PO &
PS-Pithoria, District-Ranchi
4. Masiuddin Ansari, s/o late Makbul Ansari, r/o village-Piru Tola, PO &
PS-Pithoria, District-Ranchi
5. Tabrej Ansari, s/o Mahiuddin Ansari, r/o village-Piru Tola, PO &
PS-Pithoria, District-Ranchi
6. Shaifulla Ansari, s/o Saud Ansari, r/o village-Piru Tola, PO & PS-
Pithoria, District-Ranchi ...... Appellants
AND
In Criminal Appeal (DB) No.71 of 2021:
1. Gulzar Ansari s/o late Suleman Ansari
2. Islam Ansari s/o late Suleman Ansari
3. Irsad Ansari s/o Aalam Ansari
All are r/o village-Piru Tola, PS-Pithoria, District-Ranchi ...... Appellants
Versus
The State of Jharkhand ...... Respondent
(Heard through V.C. on 17th & 18th August, 2021)
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s) : Mr. Akhouri Awinash Kumar, Advocate
[ in Cr. Appeal (DB) No.115 of 2013]
Mr. Rana Surjit Singh, Advocate
[ in Cr. Appeal (DB) No.71 of 2021]
For the State : Mr. Ravi Prakash, Spl. PP
[ in both cases]
-------
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with
Cr. Appeal (DB) No.71 of 2021
Oral Judgment
18th August, 2021
Per, Shree Chandrashekhar, J.
In Sessions Trial No. 619 of 2003, the appellants are convicted
and sentenced to undergo various periods of Rigorous Imprisonment under
sections 148, 323, 323/149, 324, 324/149, 326, 326/149, 341/149, 447 and
304 Part II/149 of the Indian Penal Code.
2. We would indicate the sentences awarded to the accused in
Tabular Chart, as under:
Accused S.148 S.304 S.304 S.323 S.323/ S.324 S.324/ S.326 S.326/ S.341/ S.447
IPC part II part II IPC 149 IPC 149 IPC IPC 149 IPC 149 IPC IPC
IPC / 149 IPC
IPC
Gulzar RI of 3 --- RI of 7 --- RI for 1 RI for --- --- RI for 5 RI for 1 RI for 3
Ansari Years Years Year 3 Years Month Months
& fine Years & fine
3000/- 1000/-
Aalam RI of 3 RI of 10 --- --- RI for 1 --- RI for 2 --- RI for 5 RI for 1 RI for 3
Ansari Years Years & Year Years Years Month Months
fine & fine
5000/- 1000/-
Islam RI of 3 --- RI of 7 --- RI for 1 --- RI for 2 RI of 7 --- RI for 1 RI for 3
Ansari Years Years Year Years Years Month Months
& fine & fine
3000/- 3000/-
Saud RI of 3 --- RI of 7 --- RI for 1 RI for --- --- RI for 5 RI for 1 RI for 3
Ansari Years Years Year 3 Years Month Months
& fine Years & fine
3000/- 1000/-
Mahiuddin RI of 3 RI of 10 --- --- RI for 1 --- RI for 2 --- RI for 5 RI for 1 RI for 3
Ansari Years Years & Year Years Years Month Months
fine & fine
5000/- 1000/-
Asimuddin RI of 3 RI of 10 --- --- RI for 1 --- RI for 2 --- RI for 5 RI for 1 RI for 3
Ansari Years Years & Year Years Years Month Months
fine & fine
5000/- 1000/-
Masiuddin RI of 3 --- RI of 7 --- RI for 1 --- RI for 2 RI of 7 --- RI for 1 RI for 3
Ansari Years Years Year Years Years Month Months
& fine & fine
3000/- 3000/-
Irsad RI of 3 --- RI of 7 RI of 1 --- --- RI for 2 --- RI for 5 RI for 1 RI for 3
Ansari Years Years Year Years Years Month Months
& fine & fine
3000/- 1000/-
Tabrej RI of 3 --- RI of 7 RI of 1 --- --- RI for 2 --- RI for 5 RI for 1 RI for 3
Ansari Years Years Year Years Years Month Months
& fine & fine
3000/- 1000/-
Shaifulla RI of 3 --- RI of 7 RI of 1 --- --- RI for 2 --- RI for 5 RI for 1 RI for 3
Ansari Years Years Year Years Years Month Months
& fine & fine
3000/- 1000/-
3. The convicts challenged the judgment of their conviction and
order of sentence in Sessions Trial No. 619 of 2003 by filing Criminal
Appeal (DB) Nos. 85 of 2013 and Criminal Appeal (DB) Nos. 115 of 2013.
3 Cr. Appeal (DB) No.115 of 2013
with
Cr. Appeal (DB) No.71 of 2021
On behalf of the appellants, namely, Gulzar Ansari, Islam Ansari and Irsad
Ansari, Criminal Appeal (SJ) No. 87 of 2013 was filed which was converted
into Criminal Appeal (DB) No. 71 of 2021 in view of the Full Bench
judgment of this Court in Criminal Appeal (SJ) No. 1281 of 2016 and
connected matter. During pendency of these criminal appeals, Aalam Ansari,
Mahiuddin Ansari, Asimuddin Ansari and Masiuddin Ansari served the
sentences awarded to them and were released. By an order dated
25.03.2021, Criminal Appeal (DB) No. 85 of 2013 filed by Aalam Ansari
was dismissed as not pressed and Criminal Appeal (DB) No. 115 of 2013
was also dismissed on 17.08.2021 qua the appellants, namely, Mahiuddin
Ansari, Asimuddin Ansari and Masiuddin Ansari - the remaining appellants
are on bail.
4. Pithoria PS Case No. 30 of 2003 was registered on 08.07.2003
against Gulzar Ansari, Aalam Ansari, Islam Ansari, Saud Ansari, Mahiuddin
Ansari, Asimuddin Ansari, Masiuddin Ansari, Irsad Ansari, Tabrej Ansari
and Shaifulla Ansari for committing the offence under sections 147, 148,
149, 323, 324, 307, 341 and 447 of the Indian Penal Code. Subsequently,
section 302 of the Indian Penal Code was added in the report.
5. In his fardbeyan which was recorded on 08.07.2003 around
9:30 AM at Kanke Nursing Home, Ranchi, Barkatullah Ansari has stated
that around 8:00 AM he found that Gulzar Ansari and Islam Ansari were
ploughing the land in the vicinity of his house. The land comprised in Khata
No.84 Plot No.561 admeasuring about 18.5 decimals out of 67 decimals had
come in share of his father and therefore his father asked the accused to stop
ploughing the said land. The accused started abusing his father and then he
along with his brothers, mother and sister-in-law rushed there. The other
accused variously armed with baluwa, farsa, lathi and tangi also came there
and started maarpit. Gulzar Ansari assaulted him with a farsa and Saud
Ansari inflicted baluwa blow near his right ear due to which blood started
oozing from the injuries. The informant has further stated that Aalam
Ansari, Asimuddin Ansari and Masiuddin Ansari gave severe beating to his
father due to which he became unconscious. His brother Sanaullah Ansari
was assaulted by Islam Ansari with a baluwa on his head and when the other
4 Cr. Appeal (DB) No.115 of 2013
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Cr. Appeal (DB) No.71 of 2021
members of his family including the female folks came there they were also
assaulted by the accused.
6. On the basis of fardbeyan of Barkatullah Ansari, a First
Information Report was lodged at 2:00 PM the same day. The informant, his
brother, mother, sister-in-law, nephew and father were brought to Kanke
Nursing Home where they were treated and administered First Aid and
thereafter Sanaullah Ansari and Majibul Ansari were brought at RIMS,
Ranchi. However, in course of treatment Majibul Ansari succumbed to the
injuries on 08.07.2003.
7. Dr. Ajit Kumar Choudhary who conducted the autopsy over the
dead body on 09.07.2003 found contusion and fracture of scalp of Majibul
Ansari.
8. Eleven witnesses were examined by the prosecution in Sessions
Trial No. 619 of 2003 to prove the charges framed against the accused out of
whom PW1 Shahib Ansari, PW3 Sanaullah Ansari, PW5 Muneja Khatoon,
PW6 Barkatullah Ansari, PW7 Katiban Bibi and PW8 Shahid Anwar are
intimately related to Majibul Ansari. The learned trial Judge has held that
though there are minor inconsistencies in the evidence of prosecution
witnesses they are reliable and trustworthy witnesses; there is no
inconsistency between the ocular evidence and medical evidence;
prosecution has proved the place of occurrence; the land which Gulzar
Ansari, Islam Ansari and Aalam Ansari were ploughing belonged to father
of the informant, and; the prosecution has proved the charges under
sections 148, 323, 324, 326, 341 and 447 of the Indian Penal Code.
9. The learned trial Judge has further held that Aalam Ansari,
Asimuddin Ansari and Mahiuddin Ansari are liable to be convicted under
section 304 Part II of the Indian Penal Code and other seven accused,
namely, Gulzar Ansari, Islam Ansari, Saud Ansari, Masiuddin Ansari, Irsad
Ansari, Tabrej Ansari and Shaifulla Ansari are liable to be convicted and
sentenced under section 304 Part II of the Indian Penal Code with the aid of
section 149 of the Indian Penal Code - however, the charge under
section 307 of the Indian Penal Code has failed.
10. Mr. Akhouri Awinash Kumar and Mr. Rana Surjit Singh, the
5 Cr. Appeal (DB) No.115 of 2013
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Cr. Appeal (DB) No.71 of 2021
learned counsels for the appellants would contend that in the First
Information Report several facts about which the witnesses have spoken in
the Court were not mentioned; the accused are related to the informant still
specific allegation of assault against some of them are not mentioned in the
First Information Report, and; the injuries found on the person of witnesses
are not corroborated by the medical evidence. The learned counsels, on the
basis of these infirmities in the prosecution case, would contend that the
prosecution has suppressed the actual cause and manner of the occurrence.
Lastly, it is contended that conviction with the aid of section 149 of the
Indian Penal Code is not proper in the present case because the prosecution
has failed to establish that common object of the unlawful assembly was to
commit murder of Majibul Ansari and/or cause grievous injuries to
Sanaullah Ansari.
11. There are as many as 7 eyewitnesses out of whom 5 are injured
witnesses. The testimony of these witnesses is challenged on the ground of
their relation with Majibul Ansari. The learned counsels for the appellants
have contended that in view of admitted land dispute between the parties
and inconsistencies in the evidence of PW3, PW5, PW6, PW7 and PW8
who have claimed that they sustained injuries at the hands of the accused,
the prosecution evidence is doubtful.
12. In "Sucha Singh v. State of Punjab" (2003) 7 SCC 643 the
Hon'ble Supreme Court has held that relationship is not a factor to affect the
credibility of a witness, for it is more often than not that a relative would not
conceal the actual culprit and make allegations against an innocent person.
13. In "Mano Dutt v. State of U.P."(2012) 4 SCC 79 the Hon'ble
Supreme Court has observed that a member of the family and friend of the
victim are the natural witnesses.
14. In "Mano Dutt"(supra) the Hon'ble Supreme Court has made
the following observations:
"24. .....Firstly, there is no bar in law in examining family
members, or any other person, as witnesses. More often than
not, in such cases involving family members of both sides, it is
a member of the family or a friend who comes to rescue the
injured. Those alone are the people who take the risk of
sustaining injuries by jumping into such a quarrel and trying to
defuse the crisis. Besides, when the statement of witnesses, who
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Cr. Appeal (DB) No.71 of 2021
are relatives, or are parties known to the affected party, is
credible, reliable, trustworthy, admissible in accordance with
the law and corroborated by other witnesses or documentary
evidence of the prosecution, there would hardly be any reason
for the Court to reject such evidence merely on the ground that
the witness was a family member or an interested witness or a
person known to the affected party."
15. The law in relation to related/interested witnesses is not in
doubt but, at the same time, it is also quite settled that testimony of a related
witness is examined with caution.
16. More than half a century ago, in "Masalti v. State of U.P." AIR
1965 SC 202 the Hon'ble Supreme Court has observed thus:
"14. ... There is no doubt that when a criminal court has to
appreciate evidence given by witnesses who are partisan or
interested, it has to be very careful in weighing such evidence.
Whether or not there are discrepancies in the evidence;
whether or not evidence strikes the court as genuine whether or
not the story disclosed by the evidence is probable, are all
matters which must be taken into account. But it would, we
think, be unreasonable to contend that evidence given by
witnesses should be discarded only on the ground that it is
evidence of partisan or interested witnesses. Often enough,
where factions prevail in villages and murders are committed
as a result of enmity between such factions, criminal courts
have to deal with evidence of a partisan type. The mechanical
rejection of such evidence on the sole ground that it is partisan
would invariably lead to failure of justice. No hard and fast
rule can be laid down as to how much evidence should be
appreciated. Judicial approach has to be cautions in dealing
with such evidence; but the plea that such evidence should be
rejected because it is partisan cannot be accepted as correct."
17. We have examined the prosecution evidence keeping in mind
the aforesaid rule of caution and agree with the learned trial Judge to the
extent that notwithstanding minor inconsistencies in their testimony the
prosecution witnesses have established their presence at the place of
occurrence. An injured witness is accorded a distinct place in a criminal trial
mainly for the reason that he lends assurance to the Court that he was
present at the time of the occurrence and therefore he would tell the Court
what had happened there.
18. 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.
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Cr. Appeal (DB) No.71 of 2021
Although in accepting the same, some amount of caution is
required to be maintained."
19. In yet another judgment, in "Abdul Sayeed v. State of M.P."
(2010) 10 SCC 259 the Hon'ble Supreme Court has observed as under:
"28. The question of the weight to be attached to the evidence
of a witness that was himself injured in the course of the
occurrence has been extensively discussed by this Court. Where
a witness to the occurrence has himself been injured in the
incident, the testimony of such a witness is generally
considered to be very reliable, as he is a witness that comes
with a built-in guarantee of his presence at the scene of the
crime and is unlikely to spare his actual assailant(s) in order to
falsely implicate someone. "Convincing evidence is required to
discredit an injured witness."[Vide Ramlagan Singh v. State of
Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of
Punjab, Bonkya v. State of Maharashtra, Mohar v. State of U.P.
(SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v.
State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P.
And Balraje v. State of Maharashtra.]
.........................................................................................
...
30. The law on the point can be summarised to the effect that
the testimony of the injured witness is accorded a special status
in law. This is as a consequence of the fact that the injury to the
witness is an inbuilt guarantee of his presence at the scene of
the crime and because the witness will not want to let his actual
assailant go unpunished merely to falsely implicate a third
party for the commission of the offence. Thus, the deposition of
the injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis of
major contradictions and discrepancies therein."
20. The informant has reproduced his statement recorded in his
fardbeyan when he came to depose in the Court. He has stated in the Court
that around 8:30 AM on 08.07.2003 Gulzar Ansari, Aalam Ansari and Islam
Ansari started ploughing the field adjacent to his house and when his father
objected the accused started abusing him. The informant has stated about
presence of Gulzar Ansari, Aalam Ansari, Islam Ansari, Saud Ansari,
Mahiuddin Ansari, Asimuddin Ansari, Masiuddin Ansari, Irsad Ansari,
Tabrej Ansari and Shaifulla Ansari who were armed with lathi, farsa,
baluwa and tangi. He has further stated that on exhortation of Gulzar Ansari
other accused started maarpit.
21. Mr. Rana Surjit Singh, the learned counsel appearing for the
appellants in Cr. Appeal (DB) No. 71 of 2021 submits that the informant has
made significant improvement in his statement in the Court because he has
added name of Aalam Ansari at the initial stage and as regards Gulzar
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Cr. Appeal (DB) No.71 of 2021
Ansari he has made allegation of exhortation only.
22. A First Information Report is not an encyclopedia of everything
that might have happened on a fateful day. It is really immaterial whether
Aalam Ansari, Gulzar Ansari and Islam Ansari only are alleged to ploughing
the field because at the initial stage they did not commit maarpit. All ten
accused are named by the informant in his statement given to the police and
Pithoria PS Case No. 30 of 2003 was lodged against them all. Insofar as the
role played by Gulzar Ansari is concerned, we find that besides exhorting
the other accused he has actively participated in the occurrence and caused
injuries to the informant and others. The other witnesses have tendered
evidence that all the accused were present at the place of occurrence and
during intense cross-examination of these witnesses the defence could elicit
nothing substantial from them. The discrepancies which are highlighted by
the defence in the testimony of the prosecution witnesses are minor
inconsistencies and these inconsistencies, in our opinion, do not touch upon
the core of the prosecution case that in the morning of 08.07.2003 a quarrel
ensued at Khata No. 84 Plot No. 561 which aggravated and in course of the
quarrel Majibul Ansari and Sanaullah Ansari were seriously injured.
23. The learned trial Judge has dealt with evidence of other
eyewitnesses in extenso and the learned counsels for the appellants have
also taken us to the entire prosecution evidence. The prosecution witnesses
have tendered almost similar evidence in the Court and, therefore, we do not
intend to reproduce testimony of all the prosecution witnesses.
24. There are some discrepancies as regards ownership of land at
Khata No. 84 Plot No. 561 admeasuring about 18.5 decimals out of 67
decimals. Mr. Rana Surjit Singh, the learned counsel appearing for the
appellants would submit that the entire chunk of land belonged to the
ancestors of the appellants and it was father of the informant who had
dishonestly purchased a part of the land from Sk. Sakir, Sk. Sabir, Sk.
Kudmuddin and Sk. Jasmuddin and that was the reason for dispute between
both the parties.
25. On this issue, the learned trial Judge has held as under:
"27. The Ld. counsels for the accused disputed the place of
occurrence and have submitted that prosecution has failed to
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prove that incident took place in the land of the informant's
family and on this basis they submit that prosecution has not
been able to prove the criminal trespass by the accused persons
and as such ingredient of section 141 of the IPC is not made
out. From perusal of the record, I find that there is no
documentary evidence available on record either by
prosecution or by defence that the land on which incident took
place belongs to whom, however, at the first instance in the
fardbayan the informant has stated that cause of incident
started as the accused were ploughing in their land and when
his father tried to stop them then accused persons by making
unlawful assembly assaulted the informant's side. It has come
in the deposition of witnesses that foundation was laid to build
house in their land and in the vicinity of foundation accused
started ploughing the land. The factum of laying of foundation
by the informant's side and that too in their land has neither
been denied nor been contradicted by the defence. PW 10 who
is I.O. of this case has stated that when he visited the place of
occurrence, he found that near the foundation the field was
ploughed and this fact has been corroborated by other
witnesses. It is an admitted position that in the vicinity of this
land there are lands of accused persons. PW 3 in his deposition
has stated that paper of partition was with Gulzar. Ld. counsel
for the accused in the cross-examination of the witnesses dealt
with this issue at length but I do not find any concrete material
extracted from the mouth of witnesses, which could make the
place of occurrence as stated by the witnesses improbable.
Taking into consideration the aforesaid discussions, I am of the
considered view that prosecution has proved the place of
occurrence is the land of the informant's side where the alleged
incident took place i.e. 18.5 decimals of land which come to the
share of deceased in Khata No.84 Plot No.561, Rakba-67
decimals."
26. The learned counsel would further submit that according to the
prosecution evidence the accused, namely, Gulzar Ansari, Islam Ansari and
Aalam Ansari were present in the field before Majibul Ansari, Barkatullah
and others went there and it was the prosecution party which arrived there
and started a quarrel and, therefore, the accused are not the aggressors.
27. The learned trial Judge has dealt with this issue in paragraph
no. 29 of the judgment under challenge, as under:
"29. The version of the injured witnesses that when they
reached at the place of occurrence the deceased was being
abused by the accused Gulzar, Aalam and Islam and by that
time remaining seven accused persons will equipped with Lathi,
Farsha, Baluwa and Tangi came to the spot and this version
cannot be discarded only on the ground that there is inimical
relation between the informant and accused side. I also find
that there is no categorical suggestion by any of the accused to
the fact that he was not present at the spot rather the defence
has put suggestion to witnesses that they have been falsely
implicated and all the injured including the deceased caused
injury due to fall on stone and throwing stones by the resident
of the locality. PW6 has also stated in his deposition that
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Gulzar has given Farsha blow on his head whereas Saud has
given Baluwa blow on his ear and this fact has been
corroborated by the statements of PW1, PW3, PW5, PW7 and
PW8. PW3 who is also the son of the deceased has deposed
that Majibul (since diseased) had given lathi blow by Alam,
Mahiuddin and Asimuddin. This witness further stated that his
brother Sanaullah (PW3) has been given Baluwa blow and
Tangi blow by Masiuddin and this fact has been corroborated
by PW5, PW6, PW7 and PW8."
28. The aforesaid findings recorded by the learned trial Judge is
based on appreciation of evidence and in the proceedings before us nothing
has been shown to us to disagree with the same. It is not much of use for the
appellants whether some of them were present before a quarrel took place
and the land belonged to them, once their presence and participation in
maarpit are established the accused must be held liable.
29. Mr. Akhouri Awinash Kumar, the learned counsel who appears
for the appellants in Criminal Appeal (DB) No. 115 of 2013 has referred to
the judgment in "Lalji v. State of U.P" (1989) 1 SCC 437 to fortify his
submission that conviction of the appellants with the aid of section 149 of
the Indian Penal Code was not proper.
30. In "Lalji" (supra) the Hon'ble Supreme Court has 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.
31. In this context, we would profitably note what Straight, J. has
said in "Queen Empress v. Ram Partab" (1884) 5 All. 121 (123):
"S. 149 of the Penal Code, 1860 declares in substance that
every member of an unlawful assembly is responsible for an
offence committed by another member, or the other members, in
prosecution of the common object of such assembly, or one
which he must have known was reasonably likely to be
committed in the prosecution of such common object. In other
words, this provision, so to speak, takes him out of the region of
abetment, and makes him responsible as a principal for the acts
of each, and all, merely because he is a member of the unlawful
assembly."
32. In "Musa Khan v. State of Maharashtra" (1977) 1 SCC 733 the
Hon'ble Supreme Court has struck a note of caution and observed that:
"5. ...... It is well settled that a mere innocent presence in an
assembly of persons, as for example a bystander, does not make
the accused a member of an unlawful assembly, unless it is
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shown by direct or circumstantial evidence that the accused
shared the common object of the assembly....."
33. The prosecution has failed to establish that common object of
unlawful assembly was to cause death of Majibul Ansari and, therefore, the
learned trial Judge has held them all guilty for culpable homicide not
amounting to murder.
34. We find no reason to disagree with the learned trial Judge that
Aalam Ansari who preferred Criminal Appeal (DB) No. 85 of 2013 and the
other accused assembled at the plot bearing Khata No. 84 Plot No. 561
formed unlawful assembly and assaulted the prosecution witnesses. The
injury report of Muneja Khatoon, Katiban Bibi, Barkatullah Ansari,
Sanaullah Ansari, Majibul Ansari and Shahid Ansari were laid in evidence
during the trial and we find that in course of maarpit Majibul Ansari
suffered serious head injury on account of which he died and Sanaullah
Ansari suffered grievous injuries due to which he had to remain in hospital
till 20.08.2003. No doubt there is variance between ocular evidence and the
medical evidence inasmuch as the allegation of various assaults upon all the
prosecution witnesses is not supported by the injury reports issued by PW9
but such minor variance between the ocular evidence and injury report is not
a ground to disbelieve a witness.
35. However, insofar as extent of participation of a witness in the
occurrence is concerned the injury report provides invaluable information to
the Court.
36. PW9 has found the following injuries on the person of :
Muneja Khatoon:
(i) An abrasion over left shoulder extending to 3" x 2".
(ii) Age of injury: within six hours.
(iii) Nature of injury: simple caused by hard and blunt substance.
Katiban Khatoon:
(i) Lacerated wound of the size of 1" x 1/2", skin deep, over left wrist.
(ii) Age of injury: within six hours.
(iii) Nature of injury: simple caused by hard and blunt substance.
Barkatullah Ansari:
(i) Lacerated wound of the size of 1/2" x 1/2", skin deep, over right ear.
(ii) An abrasion over forehead extending to 1/2" x 1/2".
(iii) Age of injury: within six hours.
(iv) Nature of injury: simple caused by hard and blunt substance.
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Sanaullah Ansari:
(i) A sharp cutting wound of the size of 3" x 1/2", bone deep (on
palpation with finger there was depressed fracture of right temporal
bone), over right side of temporal region.
(ii) Age of injury: within six hours.
(iii) Nature of injury: grievous caused by sharp cutting weapon.
Shahid Anwar :
(i) Lacerated wound of the size of 1/2" x 1/2", skin deep, over upper lip
on left side.
(ii) Age of injury: within six hours.
(iii) Nature of injury: simple caused by hard and blunt substance.
37. Mr. Ravi Prakash, the learned Spl. PP has prepared a summary
of the prosecution evidence which we would reproduce in a Tabular Chart,
for examining the role played by the appellants in the occurrence:
Shahid
Accused Shahib Ansari Sanaullah Rahmatullah Barkatullah Katiben Bibi
Muneja Ansari (P.W.8)
(P.W.1) Ansari Ansari (P.W.4) Ansari (P.W.6) (P.W.7)
Khatoon (P.W. 5)
(P.W.3)
Gulzar Weapon: Weapon:
Weapon: Weapon: Weapon: Weapon: Weapon:
Ansari Farsha
Farsha Farsha Farsha Farsha and
Baluwa, Lathi Assault on: Lathi
Assault on: Farsha
Assault on: Head of Assault on:
Assault on: Head of Barkatullah
Barkatullah; Head of Majibul; head Head of his Assault on: Assault on:
head, ear and Barkatullah of own; right Head of
Head of
chest of Barkatullah thigh of Barkatullah by Barkatullah;
Majibul Majibul Farsha; lathi
thigh of Majibul
blow on chest,
thigh, eye and
face of Majibul
Aalam Weapon: Weapon: Weapon: Weapon: Weapon: Weapon:
Weapon:
Ansari Lathi Lathi Lathi
Lathi Lathi Lathi
Lathi
Assault on:
Assault on: Assault on: Assault on: Assault on:
Hand,chest, thigh Assault on:
Assault on: Head, Blow on head Chest, thigh,
Majibul and back of Head of Head, eye, hand,
ear and chest of of Majibul; eye and face
Majibul Majibul leg, shoulder and
Majibul lathi blow on of Majibul
chest of
hand and leg
Majibul
of his own
Islam Weapon: Weapon: Weapon: Weapon:
Weapon: Weapon: Weapon:
Ansari Lathi, Farsha
Baluwa Baluwa Baluwa Baluwa Baluwa Baluwa
Assault on:
Assault on: Assault on: Assault on: Assault on: Assault on:
Sanaullah; head, Assault on:
Head of Head of Head of Head of Head of
ear and chest of Head of his
Sanaullah Sanaullah Sanaullah Sanaullah Sanaullah
Majibul. own
Saud Weapon: Weapon: Weapon:
Weapon: Weapon: Weapon: Weapon:
Ansari Farsha
Baluwa Baluwa and Baluwa Baluwa Farsha
Baluwa
Assault on: Farsha
Assault on: Ear of Assault on: Assault on:
Assault on: Assault on: Assault on:
Barkatullah Barkatullah Ear of Ear of
Right ear of Right ear of Ear of
Barkatullah Barkatullah
Barkatullah; Barkatullah Barkatullah
on Majibul
Weapon: Weapon: Weapon: Weapon: Weapon :
Mahiuddin ------- Weapon:
Lathi Lathi Lathi
Ansari Lathi Lathi
Assault on: Lathi
Assault on: Assault on:
Assault on: Head of
Hand and leg Hand, chest, thigh Assault on:
Majibul Majibul
of his own; and back of Assault on: Head, eye, hand,
blow on head Majibul Chest, thigh, leg, shoulder and
of Majibul eye and face chest of
of Majibul Majibul
13 Cr. Appeal (DB) No.115 of 2013
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Cr. Appeal (DB) No.71 of 2021
Weapon: Weapon: Weapon: Weapon:
Asimuddin ------- Weapon: ------
Lathi Lathi Lathi
Ansari Lathi
Lathi
Assault on: Assault on:
Assault on:
Assault on: Majibul Hand, chest, thigh Assault on:
Head of Head, eye, hand,
Head of and back of
Majibul leg, shoulder and
Majibul Majibul
chest of
Majibul
Weapon: Weapon: Weapon:
Masiuddin Weapon: Weapon: Weapon: Weapon:
Lathi and Tangi Lathi and
Ansari Tangi Tangi Tangi Tangi
Tangi Tangi
Assault on: Assault on:
Assault on: Assault on: Assault on: Assault on: Assault on:
Head of Head of
Sanaullah; head Tangi blow Head of Head of Head of
Sanaullah Sanaullah
of Majibul. on head of Sanaullah Sanaullah Sanaullah;
his own; lathi lathi blow on
blow on hand chest, thigh,
and leg. eye and face of
Majibul
Irsad Weapon: Weapon:
-------- ------ ------- --------- Weapon:
Ansari Lathi Lathi
---
Assault on:
Assault on: Assault on:
Hand, leg and
Majibul Face and nose of
back of her
his own; hand
own; face,
and back of
hand, leg and
Muneja
back of
Khatoon; hand
Shahid
and shoulder of
Katiban Bibi
Tabrej Weapon:
-------- ------- --------- ----- Weapon: Weapon:
Ansari Lathi
--- Lathi
Assault on: Assault on:
Assault on: Face, hand, leg Face and nose of
Majibul and back of his own; hand
Shahid; and back of
Muneja Muneja
Khatoon and Khatoon; hand
of her own and shoulder of
Katiban Bibi
Shaifulla Weapon: Weapon:
------- -------- ------- ------- Weapon:
Ansari Lathi Lathi
Lathi
Assault on:
Assault on: Assault on:
Majibul; left
Hand, leg and Face and nose of
hand of
back of her his own; hand
Katiban; thigh
own; face, and back of
of Muneja
hand, leg and Muneja
Khatoon;
back of Shahid Khatoon; hand
elbow of
& shoulder of
Shahid Anwar
Katiban Bibi
38. The gist of prosecution evidence is that there is specific
allegation of assault upon Majibul Ansari by Aalam Ansari, Asimuddin
Ansari, Mahiuddin Ansari and Gulzar Ansari. These appellants are said to be
carrying baluwa, farsa and lathi. The medical evidence reflects that Majibul
Ansari was assaulted by a hard and blunt substance and no sharp cut injury
was found on his person by Dr. Ajit Kumar Choudhary. The doctor
has found one bruise spread over "14 cm x 8 cm" over the right thigh of
Majibul Ansari. He has detected diffused contusion of right fronto parieto
temporal scalp with mosaic fracture of right parieto temporal bones. The left
parieto temporal bone of Majibul Ansari was fractured and there was
contusion of brain with subdural blood and blood clots over both sides of
14 Cr. Appeal (DB) No.115 of 2013
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Cr. Appeal (DB) No.71 of 2021
brain. The doctor has found that 3rd to 7th rib of Majibul Ansari were
fractured with contusion of soft tissues along the fracture. The doctor has
rendered an opinion that the injuries were antemortem in nature and caused
by hard and blunt substance. In his opinion, the death was caused due to
head injury and time elapsed since death was between 12 to 36 hours from
the time of postmortem. A suggestion was given to PW2 that Majibul Ansari
suffered head injury due to fall over a stone to which he has stated that the
injury cannot be caused by such a fall.
39. The evidence against Aalam Ansari, Asimuddin Ansari,
Mahiuddin Ansari, Masiuddin Ansari and Gulzar Ansari is consistent.
Besides assaulting few other prosecution witnesses they are the persons who
caused the aforesaid injuries to Majibul Ansari. The manner of attack on
Majibul Ansari demonstrates that these appellants shared common intention
to voluntarily cause grievous hurt to Majibul Ansari, though it is difficult to
identify individual assault by each one of the appellants.
40. In the above facts, we would interfere with the order of
sentence and direct that Gulzar Ansari, Aalam Ansari, Asimuddin Ansari,
Masiuddin Ansari and Mahiuddin Ansari are liable to be convicted and
sentenced to RI for five years under sections 304 Part II/34 of the Indian
Penal Code. Except conviction of Islam Ansari and Masiuddin Ansari under
section 326 of the Indian Penal Code, their conviction for committing other
offences are upheld with modification that they are convicted with the aid of
section 34 of the Indian Penal Code and not section 149.
41. Mr. Ravi Prakash, the learned Spl. PP states that Aalam Ansari,
Asimuddin Ansari, Masiuddin Ansari and Mahiuddin Ansari have completed
the sentence awarded to them and they were released from custody.
42. Mr. Ravi Prakash, the learned Spl. PP further states that Gulzar
Ansari has served sentence of about seven months and twenty-five days and
he is on bail.
43. Accordingly, bail-bonds furnished by Gulzar Ansari [appellant
no.1 in Criminal Appeal (DB) No. 71 of 2021] are cancelled. He shall
surrender in the Court below to serve the remaining sentence.
44. Islam Ansari and Masiuddin Ansari are convicted under
15 Cr. Appeal (DB) No.115 of 2013
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Cr. Appeal (DB) No.71 of 2021
section 326 of the Indian Penal Code. Islam Ansari has caused head injuries
to Sanaullah Ansari and Masiuddin Ansari is also said to have assaulted him.
PW 4, PW5, PW6, PW7 and PW8 have deposed in the Court that Masiuddin
Ansari has inflicted tangi blow on the head of Sanaullah Ansari. The
evidence against Islam Ansari of inflicting baluwa blow on the head of
Sanaullah Ansari is also consistent but the doctor has found only one head
injury.
45. On the person of Sanaullah Ansari, PW11 has found (i) one
stitched wound of the size of 1½ inch on the left side of scalp and (ii) one
abrasion on left foot and left wrist. The C.T. Scans of brain and skull were
performed and these show hemorrhage and contusion in left thigh-fronto
parietal lobe. There was small liner fracture of left parietal bone also. In the
opinion of the doctor, the nature of injury no.(i) which was on the head was
grievous and the injury no.(ii) was simple.
46. In the circumstances, conviction of Islam Ansari and
Masiuddin Ansari under section 326 of the Indian Penal Code are upheld
with modification in the order of sentence. They are sentenced to RI for five
years under section 326/34 of the Indian Penal Code.
47. Mr. Ravi Prakash, the learned Spl. PP states that Masiuddin
Ansari has been released from custody after completing the sentence and
Islam Ansari has served the sentence of more than six years, with remission
and he is on bail.
48. Accordingly, Islam Ansari [appellant no.2 in Cr. Appeal (DB)
No. 71 of 2021] is discharged of liability of the bail-bonds furnished by him.
49. As regards other accused, we find that the allegation against
Saud Ansari of assaulting Barkatullah Ansari is consistent. He is convicted
under section 324 of the Indian Penal Code. On the person of Barkatullah
Ansari PW9 has found one lacerated wound extending to 1/2" x 1/2", skin
deep, over right ear and an abrasion over his forehead. The nature of these
injuries was simple and caused by hard and blunt substance. The
prosecution evidence is that Gulzar Ansari has also assaulted Barkatullah
Ansari. In the circumstances, Saud Ansari is sentenced to RI for
one year under section 324 of the Indian Penal Code. His conviction under
16 Cr. Appeal (DB) No.115 of 2013
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Cr. Appeal (DB) No.71 of 2021
section 148, 304 PartII/149 and 326/149 of the Indian Penal Code are
set-aside.
50. However, there is complete lack of specific evidence against
Irsad Ansari, Tabrej Ansari and Shaifulla Ansari. As many as three
prosecution witnesses have not spoken anything about these appellants.
They were carrying lathi and their presence at the time of occurrence is
established. However, we find that the prosecution has failed to establish
that Irsad Ansari, Tabrej Ansari and Shaifulla Ansari shared common object
to cause grievous injury and mounted murderous attack on any of the
prosecution witnesses.
51. Accordingly, their conviction and sentence under sections 148,
304 Part II/149, 324/149, 326/149 of the Indian Penal Code are set-aside.
52. The conviction and sentence of these four appellants under
sections 341 and 447 of the Indian Penal Code are, however, affirmed.
53. Mr. Ravi Prakash, the learned Spl. PP states that the appellants,
namely, Saud Ansari has remained in custody for about one year and four
months; Irsad Ansari has served the sentence about eight months twenty two
days; Tabrej Ansari has served the sentence about two years six months and
Shaifulla Ansari has served the sentence for about one year and four months
and they are on bail.
54. The learned trial Judge has convicted and sentenced Saud
Ansari, Irsad Ansari, Tabrej Ansari and Shaifulla Ansari under section 323
of the Indian Penal Code and sentenced them to undergo RI for one year
which, in the facts and circumstances of the case, we modify to the period of
sentence already undergone by them.
55. Accordingly, the appellants, namely, Irsad Ansari [appellant
no.3 in Cr. Appeal (DB) No. 71 of 2021], Saud Ansari, Tabrej Ansari and
Shaifulla Ansari [appellant nos.1, 5 and 6, respectively in Cr. Appeal (DB)
No.115 of 2013] are discharged of liability of the bail-bonds furnished by
them.
56. In the result, Criminal Appeal (DB) No. 115 of 2013 and
Criminal Appeal (DB) No. 71 of 2021 are partly allowed.
17 Cr. Appeal (DB) No.115 of 2013
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Cr. Appeal (DB) No.71 of 2021
57. Let a copy of the judgment be transmitted to the Court
concerned and the concerned Jail Superintendent through 'Fax'.
58. Let the lower Court records be sent to the Court concerned
forthwith.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 18.08.2021
sudhir/N.A.F.R
