Jharkhand High Court

Mid. Haseem vs Lhe State Of Jharkhand Os on 25 March, 2021

Ohana,

IN THE RIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)

Cr Appeal (OB) No. S70 wf 2618
With
Ur. Appeal (9B) No. 766 of 2618
with
Cr Appeal DEY No. 796 af 2018
with
r Apneal (DB) No. 865 af 2018
with
fr Appeal (08) No STE of 2018
wh
ir Appeal (BBD No, O23 af 2018

 

   

   

reaident af village

 

~ rgites YD Ring :
VIRRS UIP

   

Cr A.CEB) No. 865 of 2018:
Mid. Haseem, son of Md. Zaheer, resident of village Sinpur, PO Banarchuha,
PS Mahagama, District Godda os oo Appellant

, (rn ACDE) No. STL of 2018:
| Md. Naseem, gon of Md. "Zabeer, resident of vilage Sinpur, PO Banarchuha,
_ PS Mahagama, District Godda besos Appellant

Cr ACDB) Na. 923 of JO18:
Halim, son af Tahin resideat af vilige Singur, PO Banarchuha, PS
Muhaganta, District Godda ve oa. Appellant

 

Cr. ADB) No. 828 of 2078:
Nayeem Mad, Nayeem, son of Md. Tahir, resident of village Sinpur,
PO Banarchuha, PS Mahagama, (istrict Godda ws ose Appellant

 

Versus
Lhe State of Jharkhand os Respondent
Un all cases]

 
 

Us dagen! UMG Ne. SAG of 2888 wath onugewr cases

(Heard throush Va". on 24.03 203) and 25.03 9001}

PRESENT

HON BLE MR. FUSTICE SHRER CHANDRASHERKHAR
HON BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant(s) 7 Mr. Peeyush Krishna Choudhary, Advocate
cen ALDB) } Nas. 870 of 2 SLR,
790 oF 2OLS, 865 of SOTR, S71 of
O23 oF ZQ18 and 828 of 2018 iS]
Nis, Baridana Sinha, Advecare
Hn Cr, A (OB) Na. 766 of 2078)

Por the State > Mrs, Prova oh reshtha, SplPpP

 

 

bd

21S,

   

 

 

Al ares ya haul ye,

 
       

Nace moa paddy feld mation that some fema

 
 
  

     
     

  

ne

owing paddy crop in thei: 'Tapyah

      
 
 

and Dr Mir ied firing in the

ain Ma. Talyab be aseem and Add. Kasim
Mad. Jahangir. He

has further stated that Md. Naseem and Md. Ishrail Hired from thelr pistol at

who were oan Ving

Ma. Jahangir ~ the shot hit the right side of his chest. On the basis of the
fandbevar of Md. Taivab which was recordad at O9:00 AM on 01.08 2010,
Mahagama PS Case No. 119 of 2010 was lodged against Md. Haseem,
Mil Kasim, Med. Zaheer, Mad. Tabur, Md. Nalim, Md. Naseem, Md, ishrail,
Irfan, De Minsar and Med. Nayeem for committing the offences under

Sead

sections 147, 148 dg. 33 3, 324, 307 and 362 of the Indian Penal Code and

y
:
é

section 27 of the Anms Act. Afier the investigation a charge-sheet was fled
against seven accused ~ Dr. Minsar was not sent up for inal due to

insufficient evidence against him. Md. Kasim was declared Juvenile and his

 

case records were separated. Md. Ishrail and frfan abscanded afer the

wectorence ind therefore charges were framed a agairist SIS persons under

 
 

Sd

Ce Agen? (AR) Ai, S70 af SES owe qandagey cvsex

seations 302/149 and 307/140 of the Indian Penal Code, vide order dated

x

23.02.2011. Subsequently, Md. Ishrail and Md. Irfan were arrested and on
22.00.2011 a supplemeniary case recerd was opened and numbered as
Sessions Trial No. 329A of BGLG. Vide order dated 22.08.2011, a simular

charge under sections 302/149 and 307/149 of the Indian Penal Code was

 

framed against them. The trial In both the sessions cases started separately
and atler eight witnesses were esamined in both the sessions trials an order
of arnalgamation of both the trlals was passed on QG,01 2018. At the fag end
of the trial, on 23.04.2018 a charge under section 27 of the Arms Act was

aise framed against them.

 
   
 

oh, py te Sage
the uncles:

» PWa-Abtds

 
    
 

fy ven ey eet so oe
IO OABER,

snce. Md. Sabb

   
  

witnesses, Resides the

  
  
   

  

sport af Ma. fy

 

st witnesses and

the records we de not see that any objection against the order of

~

amalgamation dated 09.01.2015 was taken by the defence and before us also
ne such objection has been raised. On the contrary, the learned counsels
appearing for the appellanis have submitted that these witnesses have
tendered simular evidence in both the sessions tials. For the sake of

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convenience, we would refor the witnesses in the chronology the

Lag

examined ia Sessions Trial No, 329 af 2a18,
"lz

The learned tial Judge has found that the related witnesses who

are eyewitnesses have tendered reliable evidence, but at the same time the

 

chances Gf false implication cannot be ruled out.

a, The learned Judge has held as under:

nee : Prespipg eed fhe
doef ele SNA:

 
 

 

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al Md. Jahangir, PW

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3 fr Append SBS) Ne 878 af SUES ikl setado gents fazer

gone ip stop sowing of paddy seeds in the field and he was assaulted by Md. Haseem and Md. Kasim on exhortation of Md. Zaheer. In the meantime, 4d. Ishrail, Md. Naseem, Md. inian, Dr. Minsar ard Mad. Nayeom firing pistol shots in the air carne there from. bane biny, According to him, the first four shots did not bu anyene bul the shot fired by

Md, Ishrall caused injury below the armpit of Md. Jahangix PW3 has depesed jn the Court that in the morning of 01.08.2010 he had gone to the

house Gf Md. Taiyab but there he found that Md. Jahangir, Md. Tatyab and

r had gone to the field. He has then gone to the field where he

stated that when

persons had

horted is

a NAS corroborated, P

Mad.

ishrail,

g x yee AL

shats i the air

i chat Md. Tahir, Md Halt

ed, Phere is sore cont

r hashand

aSsa uted Sb.

was shatby Mad. ishrad PS miner deviations and exageerations his testimany in the Court is on the

sunilar lines as apeken by hun before the police. His nresenoe at the place of

scounrence is established and his tesiimony is m tune with the evidence

tendered by other oyewtinesses. Pic has fendered cogent and consistent

evidence and the dearned trial Judge has found Aim a reliable ane

The eyewilnesses are intimately related to the deceased. Cin account of the land dispute the accused have raised a plea that they were

laulsely pnplicated in the case.

&. A winess may bo closely related to the victim or inimieal to the accused but on that ground his testimony carmot be treated as taimted. There

Serres ' 8 no bar in law uy examining an inimical, interested or related witness.

& Ce Append' (AR: Ne SPa af AGEN pies saaiogyns CREE

P2007 e Hon'ble Supreme Court has held thus:

ORES ERS

c > SE2,

: , EEN pay Ba fegns « PShee! £9 5

10. Ina later judgment, in "Aanva Yaday « State of thar' (20/6)

id SOC id the Hon'ble Supreme Court has reiterated the same principles

thus:

EYEWHARSSEY Qn

exeerike Max bev dare }

aosaisesd wwe hy fdrmadd the materia rd-avith care and caution as

uidicaied in the aforesgid judemonts to separate-chull from the grain. This is

required also because the indepe sadent wiinesses have not supported the

erosecauiion. io the |

hayes peehe

imal analysis, we find that there is same inconsisteacy in

the testimony ofthe eyewitnesses burt there is ne doubl an their presence at

the place of occurrence. There are exageecrations in their testimony about

involyernent oF some accused bul as regards assualt on Md. Jahangir and

Ma.

reage

informant, they have remained unsheken im the

q2. Fram the evidence of the eyewitnesses, we find that pectic

eclared jivenie} and Md. Ishraill with firearm. Dr Dilip Kumar

who conducted the postmorters examination has found bwo

lacerated injuries araund forehead of Mad. Jahangir. The eyewitnesses have

consistently stated that Mad. Kasim assauiied the decease al with kbanh We

Ca Na, STR af SEES wlth garsrlagaws vases

farther find that except fwe lacerated injures and « firearm inpary which js relatable to the shot fired by Md. Ishrail there was ne other injury found on the dead body of Md. Jahangir. The allegation against Md. Zaheer is that he exhorted offiers to assauli ihe Informant party, PW3 has stated that Mid. Zaheer, Md. Tabi and Md. Halins assaulted the informant with foray, and from the injury report vide Exit we find abrasion and bruise injuries whieh might have been caused by loth blow. The allegation against Md. Easeem is that he assuniied the informant with Mian. Dr, M. Noorul aque

who clinleally ¢ d. Palyab on 01.08 2010 has found two lacorated

infuries on him lwo « the munor infaries were qlsoigumd On the person ob

. Noor, }

hoches been exan nee

i4, As regards other five accused.avefind that PW2, PW and

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AW have stated that five persons came from bunsffié fring pistol shots in

the alr but one of them, namely, Or Minsar has not been found Involved on

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he accurrence. There is an allegation against Md. Naseer of frig which

did not cause any injury to amyone and the witnesses have stated that

Mad. Naseem, Md. Mayeem, Md. Ishrail, Md. Irfan and Dr. Minsar fireci in

sone

the aie to thieesten the villagers. Hlowever, the fact remaims that there is nea

paeee.

allegation of firing al the deceased by Ma, Nayeem and Md. Irian and the

allegation of firing by Md. Naseem at the deceased appears to be highly doubtfid ~ only PW has stated about firing by Md. Naseem at the deceased, bo. There was a long-standing land dispute between the parties ~

they are descendants ofa common ancesiar

The dispute was blazing tor the

last two years and in the evening belore the cecurrenes there was an

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at the first i uy, Md. "aheer,

Mi. Haseem and Med. quarre! edith the

informant and his brothers. aM Gained them

subse uently bul except Md. Ishrall no other accused has caused any inpury

vgation of firing In the air or at

io Mad. Jak anger ae the mformant. The all

Ma. ohn by Mal N

Seem is not corrpbarated by any other independent

intdge or feed bullet was recovered from the place of

aecutrence and this is the prosecution case thet four af ther have not even tried Ip assault anyone. In this context it js also relevant to keep in mind that

asmme of ihe witnesses have stated that mepge corlinued for about 16

hat there was no SHeMpE to assault and more import antly repeated assault bs gay accused except Md. Kasim who: Wis declared fu

whoa has assaulted th

+g} Ch dep? LBS) Ne, 88 of BEET SUR aansdageas cusTs

evidence against Md. Tehir and = Md. Halts who were said to have been arrying dati We find thal as many 4 s four independent witnesses have not supported ¢ the proscontion ~ PW9-Md. Muslim, PW1I0-Mano) Thakur,

PWLi-Master Nasir and PWI6-Md. Jenul Abedin were declared hostile; and

this agpect of the case Is also reget dred tg be kept in mind.

¢ 2

4, in the above state of evidence, it is ch Peult to hold that all the

weno:

accused formed an unlawful assembly and even assimming presence of all at the place of occurrence all of them cannot be held guiligy, We are therefore melned to extend benefit of doubt to Mad. Halim, Md. Naseem,

air conviction arc senfence

'©

Md. Nayeem and Md. Irtan and,

ral Code and under

: reetiant in Cr Appeal (OR)

Mid. fshrail whe i is

shest { below

ot re g ay

ahangiy

heal put the

ure of

shat fired by

ies Including & rib

'of singeing

very clase range

and the witnesses hy Jahangir suce: nary who carnducted the pasimarten

PnSHoA

Fy ?

CHMSCYY GLO S

s aeper seg fies DROS

7 INPORCOATY

; « SMe BBP RS

sif staried around

> rpcorded at G9:00 AM: the

distance between Mahagume police slation and the place of scourreres was about TQ kilometers, and: a First Information Repert was indged af

11:30 AM the same day. In the above fucts, we are unable to accept the

t os s

contention raised on behalf of the appellant, namely, Md. Ishrail that he was

"4 }

urmieated in this case. We hold that Md. Ishrail intended to cause

death of Md. Jahan; Tate

pceased as ViClin Conip MICS NO GAAS Was made 4

dasue To oam not imelined to ¢ SSGHION IS ONESASI VE.

Mrs. Priya Shreshtha, the te:

RETVE L

he rem malnif

ated pane

32. 33 ny has canseddtworlaccrated injuries to the informant. 'The extent of injuries indicates that those were erievous Injuries. There is no

auegation of Md. Naseem causing any injury to Md. fshangir ar any other witness. The injuries caused io the informant were not likely to cause death and, therefore, Ma. Haseer is liable to be corrvicted under section 328 of. the Indian Penal Code.

Castivgn DES ekaha Y : . Seetion 325 of the Indian Penal Code reads as under:

anisiivent for veluntarily causfax grievous hart-

Excey ee case pros fed for by seetion 333,

be punished wit

Rays Sop op te . ay nee z : ae Wie rye iG POP ch Ee Pee wee Bay & Sy Feopigd

ure yrs faery,

z i cfecr he Fedde py See 8G PN Pee Le Re,

Aceordinely, Md. Haseern is canvieted and sentenced to RI for

@ years under section 325 of the Indian Penal Code. Since he is on bail his

wey is Cr dgpent (a3 Ma, &F8 af BES with ave! RORORS ORE

hal bors ure eancelied. He shall surrender to serve: Gut the reralung

SOMMER.

3h, Cr Appeal (DR) Neo. R68 of 2OIR is partly allowed, wa th

aforesaid terms.

The learned trial judge has conv scted and sertenced Md. Zaheer

a) oe.

vahiruddin to undergo SI for one your ander section 323 of the Indian

tty

Ge ;

tine

Penal Code.

38 Mrs. Priva Shreshtha, the learned Spl PP siates that Mid, Saheer

wok

vahirnddin has remained in cusiady far cieven months and thuteen day

AS ',

two mons. and. clwenky. SIX a ays of custody alter his

which urclides

The

. iia bility of ball bonds furnis ished

appeal (DB) }

Wo, TH6 of of 2018, Halim in . Appeal 2B) Naye em (@ Md, Nayeerm in Cr, Appeal | (OE) No. G28 of 2018 are on bail and, therefore, they are

discharged of the liability of bad bonds furnished by them.

A} Pog To " zt ox 2 ag F stipes ~s ; 43, het feaver Court records be transmitted to the Court corcerned,

24 ctor 5 af thee er " ad, Let a copy af the Judgment be transmitted to the Court consermed and the concerned Jail Superintendent through 'PAX', for Information and necessary acbert. (Shree Chandrashekhar, J.

Ball (Ratnaker Ghengra, J}

ShardayNoumya: