Jharkhand High Court
Salim Mistri @ Md. Salim Mistri vs The State Of Jharkhand on 2 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 450 of 2012
1. Salim Mistri @ Md. Salim Mistri, S/o Late Abbas Miyan
2. Samim Mistry @ Md. Samim Mistry, S/o Late Abbas Miyan
3. Sabir Tailor, S/o Late Abbas Miyan [deleted v/o dated
02.09.2021]
4. Mithu Mistry, S/o Late Md. Siddique
5. Md. Laddu, S/o Samim Mistri
6. Md. Firoj, S/o Samim Mistry
7. Chunna Miyan @ Chunnu Miyan, S/o Sabbir Tailor
8. Md. Rahman, S/o Late Yakub Miyan [deleted v/o dated
02.09.2021]
All are Resident of Village- Baganpara,
P.O.- Pakur, P.S. -Pakur (T),
District- Pakur (Jharkhand) ... ... Petitioners
-Versus-
The State of Jharkhand ... ... Opp. Party
With
Cr. Rev. No. 453 of 2012
1.Md. Azad @ Azad @ Azad Mistry Son of Md. Ramzan
2.Saiyad Mistry, Son of Jahur Mian
3.Siraj Mistri, Son of Jahur Miyan
4.Md. Salim @ Md. Salim Ansari, Son of Jahur Mian
All resident of Village- Bagan Para,
P.O.- Pakur, P.S. -Pakur (T),
District- Pakur (Jharkhand) ... ... Petitioners
-Versus-
The State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioners : Mrs. Nitu Sinha, Advocate
(In both cases)
For the Informant : Mr. Rajeeva Sharma, Senior Advocate
Mr. Ritesh Kumar, Advocate
For the State : Mr. Shailesh Kumar Sinha, A.P.P.
(In Cr. Rev. No. 450/2012)
Mr. Sanjay Kumar Srivastava, A.P.P.
(In Cr. Rev. No. 453/2012)
---
Through Video Conferencing
---
07/02.09.2021 Heard Mrs. Nitu Sinha, the learned counsel
appearing on behalf of the petitioners in both the cases.
2. Heard Mr. Rajeeva Sharma, the learned Senior counsel
alongwith Mr. Ritesh Kumar, Advocate appearing on behalf of
the Informant in both the cases.
3. Heard Mr. Sanjay Kumar Srivastava, A.P.P. and Mr.
Shailesh Kumar Sinha, A.P.P. appearing on behalf of the
Opposite Party-State.
4. A counter-affidavit has been filed in the present case
pursuant to the last order wherein it has been indicated that
petitioner no. 3 and petitioner no. 8 in Cr. Rev. No. 450 of 2012
have expired.
5. From the perusal of the impugned order, it appears that
no fine amount as such has been imposed.
6. Accordingly, Cr. Rev. No. 450 of 2012 filed by petitioner
no. 3 - Sabir Tailor and petitioner no. 8 - Md. Rahman is treated
as abated.
7. Office is directed to delete the name of the petitioner nos.
3 and 8 in red ink from the cause-title.
8. Both the criminal revision petitions are directed against
the Judgment dated 02.06.2012 passed by the learned
Additional Sessions Judge-I, Pakur in Criminal Appeal No.
27/2009 whereby and whereunder the appellate court affirmed
the Judgment of conviction and the order of sentence dated
10.06.2009 passed by the learned S.D.J.M., Pakur in G.R. No.
305 of 2001 / T.R. No. 04 of 2009 [arising out of Pakur (T) P.S.
Case No. 153/2001 dated 15.07.2001] and dismissed the
criminal appeal.
9. The learned trial court had convicted all the 12 petitioners
and one Md. Ramjan S/o Late Yakub Miyan for the offences
under Sections 147, 148, 323/149 of the Indian Penal Code and
had sentenced them to undergo Rigorous Imprisonment for one
year under Section 147 of the Indian Penal Code, Rigorous
Imprisonment for one year under Section 148 of the Indian
Penal Code and Rigorous Imprisonment for one year under
Section 323/149 of the Indian Penal Code and all the sentences
were directed to run concurrently.
Arguments on behalf of the petitioners
10. The learned counsel for the petitioners submitted that the
petitioners have been wrongly convicted by the learned courts
below and the impugned judgment is ex-facie perverse. She
submitted that one of the basic ingredients of the offence under
Section 149 of the Indian Penal Code is not attracted in the
present case as the total number of persons being three i.e. less
than five. She referred to the evidence of P.W.-5 who has been
shown as an independent witness and submitted that he has
identified only two persons. However, during the course of
arguments, it was not disputed that this particular witness has
not stated about total number of persons involved in the
commission of the offences. She also referred to the evidence of
P.W.-6 and submitted that this witness has stated that the
accused had assaulted the victims by rod. She further
submitted that it was alleged that two accused persons were
armed with pistol, but the injury was found to be that of rod
and hard and blunt substance. She submitted that there are
material discrepancies in the evidence of the prosecution
witnesses and accordingly, the conviction of the petitioners for
the alleged offences cannot be sustained in the eyes of law. She
further submitted that although Investigating Officer of the
case has been examined, but the evidences of P.Ws. -6 to 8 were
not recorded by him in the case diary and accordingly, their
evidences cannot be taken into consideration. However, she did
not dispute the fact that P.Ws. -6 to 8 are injured witnesses of
the case.
11. The learned counsel for the petitioners further submitted
that the occurrence is of the year 2001 and more than 20 years
have elapsed from the date of incident and the petitioners have
faced the criminal case for a long period. She submitted that
there is no minimum sentence as such prescribed under the
sections in which the petitioners have been convicted and
accordingly, in spite of their previous conviction as per Exhibit-
18, a sympathetic view may be taken while considering the
sentences of the petitioners.
Arguments on behalf of the Opposite Parties
12. Learned Senior counsel appearing on behalf of the
informant submitted that there are other witnesses also who
have taken the names of various accused persons and P.W.-1
and P.W.-6 are amongst them. He submitted that the doctor
who had examined the victims after the incident has also been
examined and the prosecution case has been fully established
by the consistent evidence of the prosecution witnesses who
have supported the prosecution case.
13. Learned counsel appearing on behalf of the Opposite
Party-State as well as informant opposed the prayer of the
petitioners and submitted that there are concurrent findings
recorded by the learned courts below which have been fully
supported by the materials on record as well as evidence of
doctor and the victims of the case and there is no illegality or
perversity in the impugned judgments of conviction. He further
submitted that it is not in dispute that statement of the
informant of the case was duly recorded by the Investigating
Officer of the case.
14. Learned Senior counsel for the informant further
submitted that the basic ingredients for offence under Section
149 of the Indian Penal Code are fully satisfied in the present
case and ingredients of the other offences are also satisfied and
therefore, the present revision is fit to be dismissed. He also
referred to the judgment passed by the learned trial court who
at the time of passing the sentence has categorically stated that
the convicts were earlier convicted in another case for which
Exhibit-18 has been filed before the learned trial court.
Accordingly, the learned trial court refused to extend the
benefit of Probation of Offenders Act to the petitioners. Learned
Senior counsel submitted that in view of the fact that the
petitioners were convicted earlier, no sympathetic view may be
taken so far as sentences of the petitioners are concerned.
Findings of this Court
15. As per the prosecution case, on 15.07.2001 at 09:00 A.M.,
the Informant namely, Md. Hasim Khan alongwith his brothers
Md. Nasim Khan, Md. Mukhtar Khan, Md. Samsad Khan and
his father Md. Nayeem Khan were getting their house
constructed by labourers in Daag No. 1582/2794 situated in
Mouza- Pakur, Mohalla- Baganpara and at that time, the
petitioners alongwith 7-8 unknown persons came there. Salim
Mistri and Azad were armed with pistols. Samim Mistry and
Munna were armed with bhalas and the unknown persons
were armed with pistol, rod and lathi. They abused the
informant, his brother and his father. Salim Mistri asked the
informant as to who lodged a case against them and Rehman
demanded cash for permission of construction. Thereafter, the
accused persons started assaulting the informant, his father and
brothers and also assaulted the mason and labourers. Due to
intervention of the local people, the lives of informant and
others could be saved. The accused persons took away 07 bags
of cement and demanded Rs.1,00,000/- and threatened not to
allow construction. It was further stated that 05 months ago
also, the accused persons had committed similar offence and
the Informant had lodged Pakur P.S. Case No. 40/2001 against
them.
16. On the basis of the written report, Pakur (T) P.S. Case No.
153/2001 dated 15.07.2001 under Sections 147, 148, 149, 323 of
the Indian Penal Code was registered. After completion of
investigation, the investigating Officer submitted charge-sheet
against the petitioners and cognizance of the offence was taken
on 25.01.2002. On 17.05.2002, charges were framed against the
accused persons under Sections 147, 148, 149, 323 of the Indian
Penal Code which were read over and explained to them in
Hindi to which they pleaded not guilty and claimed to be tried.
17. In course of trial, the prosecution examined altogether 08
witnesses. P.W.-1 is Md. Hasim Khan who is the Informant of
the case, P.W.-2 is Md. Nabi who has been declared hostile,
P.W.-3 is Dr. Suresh Chandra Sharma, P.W.-4 is S.I. Kameshwar
Mishra who is the investigating officer of the case, P.W.-5 is
Ratan Kumar Das, P.W.-6 is Nasim Khan, P.W.-7 is Md.
Mukhtar Khan and P.W.-8 is Md. Nayeem Khan. The
prosecution exhibited several documents including the written
report as Exhibit-1, injury reports as Exhibits- 2, 2/1, 3, 3/1, 4,
4/1, formal F.I.R. as Exhibit-5, certified copy of F.I.R. of Pakur
(T) P.S. Case No. 40/2001 as Exhibit-6, certified copy of deed as
Exhibit-7, certified copy of Judgment passed in G.R. 306/2001
as Exhibit-17 and certified copy of Judgment passed in G.R.
67/2001 as Exhibit-18.
18. On 28.02.2006, the petitioners were examined under
Section 313 of Cr. P.C. wherein they denied the incriminating
evidences put to them and claimed to be innocent. The
petitioners exhibited certified copy of order dated 04.03.2002 in
P.C.R. Case No. 257/2001 as Exhibit-A and certified copy of
Complaint Petition in P.C.R. Case No. 257/2001 as well as
certified copy of the parcha were also exhibited.
19. Learned trial court considered the oral and documentary
evidences available on record and recorded its findings in Para-
21 which reads as under:
"21. P.W. 1, P.W. 6, P.W.-7, P.W.-8 are the injured and from
the statement of P.W.-3 and from injuries report Ext.-2, 2/1,
Ext. 3 to 3/1, Ext.-4, Ext.-4/1, injuries on P.W.-6, P.W.-7 and
P.W.-8 have been corroborated and also it has come from the
statement of these witnesses that accused person were in
unlawful with deadly weapons and assaulted the informant side
and from the statement of the P.W.-4 (I.O.), the place of
occurrence has been established. Hence from the above facts
prosecution has been able to prove the charges of offence u/s
147, 148, 323/149 of the I.P.C. against the accused persons."
20. The learned appellate court also considered the materials
on record and recorded its finding at Para-6 that it is a case
under Section 323 of the Indian Penal Code wherein the
number of miscreants assembled unlawfully at the place of
occurrence and assaulted the informant and his family
members, but no fire-arm was used and the injuries were
caused by lathi or iron rod. The prosecution witnesses have
supported the prosecution case and there is no ambiguity or
contradiction in their statements on the points of day, time and
manner of occurrence. The learned appellate court affirmed the
conviction of the petitioners under Sections 147, 148, 323/149 of
the Indian Penal Code and maintained sentences passed by the
learned trial court.
21. After hearing the learned counsel for the parties and
perusal of the materials on record, this Court finds that P.W.-1
is the Informant and an injured victim of the case. He named
the accused persons and deposed that the accused persons
came with pistol, rod and lathi and assaulted him, his father
and brothers namely, Nasim, Mukhtar and Samsad and all the
accused persons together assaulted and caused hurt on his both
hands, back and left leg. He received treatment from private
doctor and the other persons received treatment in Government
Hospital.
22. This Court further finds that P.W.-6, P.W.-7 and P.W.-8
are also the injured witnesses of the case and they have fully
supported and corroborated the evidence of the informant.
P.W.-6 also named the accused persons. P.W.-3 is the Doctor
who had examined the injured P.W.-6, P.W.-7 and P.W.-8. He
deposed that he had examined the P.W.-6 and had found three
injuries on his person and he proved the injury reports of P.W.-
6 as Exhibits-2 and 2/1. He had also examined P.W.-7, Md.
Mukhtar Khan and had found two injuries on his person and
he proved the injury reports of P.W.-7 as Exhibits-3 and 3/1. He
had also examined P.W.-8 Md. Nayeem Khan and had found
six injuries on his person and he proved the injury reports of
P.W.-8 as Exhibits-4 and 4/1. The doctor has stated that all the
injuries of the injured persons were caused by hard and blunt
substances. The Investigating Officer, P.W.-4 had inspected the
place of occurrence and he has also corroborated the
prosecution case.
23. This Court finds that the learned courts below have
recorded concurrent findings upon appreciating the materials
on record including the evidences of the injured victims of the
case who have fully supported the prosecution case and the
doctor who has examined three injured victims of the case. This
Court finds no scope for re-appreciation of the evidences for
interfering with conviction of the petitioners and there is no
illegality or perversity in the impugned judgments.
24. So far as sentence is concerned, this Court finds that it has
been recorded by the learned trial court that the petitioners
were previously convicted in one case and the prosecution has
exhibited the certified copy of the Judgment of the said case i.e.
G.R. Case No. 67/2001 as Exhibit-18 and this fact has not been
disputed by the learned counsel appearing for the petitioners.
Further, in the present case at the time of occurrence, the
petitioners abused and assaulted the informant and other
victims as one case was earlier lodged against them.
Considering the manner and reason for which the offence has
been committed in the present case, this Court is not inclined to
interfere with the sentences of the petitioners.
25. Accordingly, in view of the aforesaid findings, both the
criminal revision petitions are hereby dismissed.
26. Interim order, if any, stands vacated.
27. Bail bonds furnished by the petitioners are cancelled.
28. Pending interlocutory application, if any, is closed.
29. Let the lower court records be immediately sent back to
the court concerned.
30. Let a copy of this Judgment be communicated to the
learned court below through "email/FAX".
(Anubha Rawat Choudhary, J.)
Binit/
