Jharkhand High Court
Jamal Mian vs State Of Jharkhand on 6 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 774 of 2012
1. Jamal Mian S/o Late Roshan
2. Md. Shakil S/o Md. Jamal
3. Md. Kajim S/o Late Roshan Mian
4. Md. Kailu S/o Md. Kamruddin
5. Charkhu @ Charku S/o Md. Islam
6. Md. Mahafuz S/o Md. Jamal
7. Md. Kallu S/o Md. Kamruddin
8. Md. Bablu @ Bablu Mian S/o Md. Jamal
9. Md. Kamruddin S/o Late Roshan Mian
10. Md. Kaushar S/o Md. Mobarak
11. Md. Guddu S/o Md. Islam
12. Md. Afjal S/o Late Roshan
All Resident of Village Kud, P.O. and P.S. Katkamsandi
District Hazaribagh ... ... Petitioners
-Versus-
State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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Through: Video Conferencing
8/06.09.2021
1. Heard Mr. P.P.N. Roy, the learned Senior counsel appearing
on behalf of the petitioners alongwith Mr. Pandey Ashok Nath
Roy, Advocate.
2. Heard Mr. Jitendra Pandey, the learned A.P.P. appearing on
behalf of the Opposite Party-State.
3. This criminal revision has been filed against the judgment
dated 13.06.2012 passed by the learned District and Additional
Sessions Judge-cum-Special Judge (L.A), Hazaribag in
Criminal Appeal No. 241/11 whereby and whereunder the
learned appellate court has dismissed the criminal appeal filed
by the petitioners and modified the judgment of conviction
and the order of sentence dated 09.12.2011 passed by the
learned Judicial Magistrate, 1st Class, Hazaribag in G.R. No.
2954/2001 corresponding to T.R. No. 1784/2011.
4. The conviction and sentence of the petitioners passed by the
learned trial court as well as learned appellate are given in
tabular form as under: -
Petitioner Conviction Conviction by Sentence by Trial Sentence by
Numbers by Trial Appellate Court Court Appellate
Court Court
1 to 4,6 to 11 u/s 147, u/s 147, 341 S.I. for 3 months S.I. for 3
148, 341, and 323/34 u/s 147/34 IPC; months u/s
_______________________________________________
323 and IPC. S.I. for 4 months 147 IPC;
_________________________________________
506/34 u/s 148/34 IPC; S.I. for 15
IPC Acquitted for ________________________________________________
days u/s 341
offences u/s S.I. for 2 months IPC;
148 and 506 u/S 341/34 IPC; __________________________________________
IPC.
_________________________________________________
and S.I. for
S.I. for 3 months 3 months
u/S 323/34 IPC; u/s 323 IPC.
and S.I. for 6 _________________________________________________________________
months u/S
506/34 IPC
5 and 12 u/s 147, u/s 147, 341 S.I. for 3 months S.I. for one
148, 341, and 325 IPC. u/s 147/34 IPC; month u/s
_______________________________________________
323, 326 S.I. for 4 months 147/341 IPC
and Acquitted for u/S 148/34 IPC; ___________
506/34 offences u/s and R.I. for
________________________________________________
IPC 148, 326 and S.I. for 3 months 1 year with
506 IPC and u/s 341/34 IPC; fine of Rs.
_________________________________________________
convicted u/s S.I. for 4 months 500/- u/s
325 IPC. 325 IPC.
u/s 323/34 IPC;
_____________________________________
S.I. for 6 months
u/s 506/34 IPC;
_________________________________________________
and R.I. for 1
year u/S 326/34
IPC
5. The conviction and Sentence of Petitioner Nos. 1, 2, 3, 4, 6, 7, 8,
9, 10, and 11 passed by learned trial court as well as learned
appellate court are same. Conviction and Sentence of
Petitioner Nos. 5 and 12 passed by learned trial court as well
as learned appellate court are same.
Submission on behalf of the petitioners
6. Learned Senior counsel appearing for the petitioners while
advancing his arguments, at the outset, submitted that the date
of occurrence in the instant case is of the year 2001 and there
are 12 convicts and accordingly, there are 12 petitioners before
this Court. Learned Senior counsel submitted that the
Petitioner Nos. 1 to 4 and Petitioner Nos. 6 to 11 were
convicted for offence under Sections 147, 148, 341, 323, 506/34
of the Indian Penal Code by the learned trial court and the
Petitioner Nos. 5 and 12 were convicted under Sections 147,
148, 341, 323, 326, 506/34 of the Indian Penal Code. However,
the learned appellate court has set aside the conviction of the
Petitioner Nos. 5 and 12 for offence under Section 326/34 of
the Indian Penal Code and convicted them under section 325
of IPC. Learned Senior counsel also submitted that so far as
offence under Section 148, 504/34 of the Indian Penal Code is
concerned, the learned appellate court acquitted all the
petitioners. Learned Senior counsel submitted that
considering the fact that the occurrence is of the year 2001 and
there was previous enmity between the parties, the sentences
of the petitioners may be modified and confined to the period
already undergone by them in custody. He submitted that
during the pendency of the present revision application also,
the petitioners have remained in custody for some time. The
records of the case show that the petitioners had surrendered
before the learned court below on 04.09.2012 and were
directed to be released on bail vide order dated 19.09.2012.
Learned Senior counsel submitted that after the order dated
19.09.2012, a few days must have been taken by the petitioners
for furnishing the bail bonds.
7. Learned Senior counsel for the petitioners also submitted that
a supplementary affidavit has been filed in the instant case
bringing on record the judgment passed on 16th June 2015 by
the learned District & Additional Sessions Judge-VII,
Hazaribag in Cr. Appeal No.140 of 2008 whereby the
Petitioner No.1 and petitioner No.8 have been acquitted in
connection with Complaint case No.905 of 2001,
corresponding to T.R. No.753 of 2008. He submitted that this
judgment becomes relevant in view of the criminal antecedent
with regard to petitioner Nos.1 and 8 as mentioned in internal
Page No.6 of learned trial court's judgment.
8. Learned Senior counsel also submitted that the age at the time
of conviction of the Petitioner Nos. 1 to 12 was 75 years, 40
years, 55 years, 37 years, 37 years, 30 years, 45 years, 42 years,
65 years, 28 years, 27 years and 50 years respectively and from
the records of the case, it appears that Petitioner Nos.1, 3, 9 and
12 had executed a bond under the provision of Probation of
Offenders Act in relation with conviction under another case.
He also submitted that it was only Petitioner No.5 and
Petitioner No.12, who have been convicted for the offence
under Section 325 of the Indian Penal Code and have been
sentenced accordingly by the learned appellate court.
9. Learned Senior counsel for the petitioners also submitted that
considering the facts and circumstances of the case and the
lapse of time and the present age of the petitioners, some
sympathetic view may be taken.
Submission on behalf of the State
10. Learned A.P.P. appearing on behalf of the opposite party-
State, while opposing the prayer, submitted that it has been
recorded by the learned trial court in the judgment itself that
there was previous conviction of the Petitioner Nos. 1, 3, 9 and
12. He submitted that on account of the previous conviction of
the aforesaid petitioners, no sympathetic view may be taken in
connection with these petitioners. Learned A.P.P. also
submitted that so far as Petitioner No. 5 and 12 are concerned,
no sympathetic view may be taken in view of the fact that
grievous injury was caused and they were convicted inter alia
under Section 325 of the Indian Penal Code and the maximum
punishment prescribed under Section 325 is 7 years, but the
learned appellate court has sentenced them only for a period
of one year with fine of Rs. 500/-. So far as the other petitioners
are concerned, learned A.P.P. submitted that appropriate
order may be passed and it is for the court to consider the
sentences even at the stage of revisional jurisdiction.
11. During the course of argument, it is not in dispute that the
occurrence is of the year 2001 and about 20 years have elapsed
from the date of the incident. Learned counsel submitted that
so far as conviction of the petitioners are concerned, there are
concurrent findings recorded by the learned courts below in
connection with the conviction under Sections 147, 323, 341 of
the Indian Penal Code for the petitioner Nos. 1 to 4 and 6 to 11
and for offence under Sections 147, 341 and 325 of the Indian
Penal Code so far as the Petitioner Nos. 5 and 12 are concerned.
It is also not in dispute that the learned trial court had
convicted the petitioner Nos. 5 and 12 for the offence under
Section 326/34 of the Indian Penal Code, but the appellate
court has found them guilty for offence under Section 325 of
the Indian Penal Code and not under Section 326/34 of the
Indian Penal Code. Learned counsel for the state has
submitted that no interference is called for in the conviction of
the petitioners as there is no illegality or perversity in the
impugned judgments.
Findings of this Court
12. As per the prosecution case, one Anil Kumar Singh narrated
his fardbeyan before the ASI, S.D. Singh of Sadar P.S. on
13.12.2001 at 23:30 P.M. at Sadar Hospital itself alleging that
on the same day, he was sitting in the shop of Iltaf Mian at
around 9:00 P.M. and he heard some sound near the house of
Iltaf Mian. At this, he and Iltaf went there and when they were
going to the house of Sarju Ram at Chatra Road, they saw the
accused persons/petitioners, altogether 12 in number, were
carrying sticks, Bhujali in their hands. They stopped there out
of fear and on seeing them, the accused persons rebuked them.
The accused persons ran towards both of them and asked as to
why he had given evidence in his case and on the objection,
Afjal Ansari uttered some hot words and instigated some other
accused persons. Upon this, Charkhu hit him with Bhujali just
over his ear, eye and head with bad intention and he fell down
and rest of the accused persons had beaten him with sticks and
as such, he got injured. He became unconscious due to
merciless beating and one of the accused persons had snatched
away Rs. 600/- from his pocket. Several persons of the village
had seen the occurrence.
13. On the basis of the written report of informant-Anil Kumar
Singh, the case was instituted under Sections 147, 148, 341, 323,
307, 379, 506/34 of the Indian Penal Code, which was
registered as Katkamsandi P.S. Case No. 197/01. Upon
investigation, charge-sheet was submitted under Sections
147/ 148/ 341/ 323/ 326/ 307/ 506/34 of IPC against all 12
named accused persons/petitioners vide charge-sheet No.
28/02 dated 28.02.02 and cognizance was taken for offence
under Sections 147/ 148/ 341/ 323/ 326/ 506/34 of IPC vide
order dated 06.03.2002. Cognizance was not taken under
Section 307 of the Indian Penal Code as the learned C.J.M. did
not find any prima-facie case under the said section. The
petitioners were ultimately charged for offence under Sections
147/148/341/323/326/506/34 of IPC.
14. At the stage of trial, altogether six witnesses were examined
including the victims- Iltaf Mian and Anil Kumar Singh, who
were examined as P.Ws.-5 and 6 respectively. P.W.-1 is a cycle
mechanic who claimed to be an eye-witness of the occurrence.
He has fully supported the prosecution case by stating that
when he heard the sound of shouting, he reached near the
house of Sarju Ram and found that Anil Kumar Singh and Iltaf
had got injuries, blood was pouring out from their injuries and
he brought the injured on a bus coming from Chatra to Sadar
Hospital, Hazaribagh and police had taken his statement
regarding the occurrence. In his cross-examination, he stated
that when he reached near the place of occurrence, then he had
seen that Afjal, Jamal Ansari, Kamruddin Mian, Bablu Mian,
Mahbub Mian, Shakil Mian, Kallu, Kaishar Mian and others
have beaten with stick and Bhujali.
15. P.W.-2 Mantosh Paswan has also fully supported the
prosecution case. He has stated that on the date and time of
occurrence, he was at his house and on shouting, he came out
and reached near the house of Sarju Ram, where there was
heavy rush and discussion was going on between the
informant and Afjal. After some time, Charkhu had attacked
twice with Bhujali over the informant firstly and hit his right
eye and over his head, upon which, the informant fell down
on the ground and then Kallu, Kaila, Charkhu, Guddu,
Kamruddin, Kajim, Afjal, Jamal, Bablu, Shakil, Mahfuz,
Kaishar had beaten with stick and rod. He also stated that
when Iltaf got to rescue him, Afsal had hit him with rod over
his right leg. After the incident, the accused persons fled away
from the spot. P.W.-2 is also an eye-witness to the occurrence.
He has proved the date, time and manner of occurrence.
16. P.W.-3 is the Doctor who had medically examined the victims
Anil Kumar Singh and Iltaf Mian and exhibited the injury
reports, which were already exhibited earlier as Exhibits-1,
1/1, ½ and 1/3 respectively. This witness has stated that the
injured victim P.W.-6 (the informant) was examined by him on
13.12.2001 at about 9:55 p.m. and he found the following
injuries on his body: -
(i) Lacerated wound 1' x ¼" x muscle deep with fresh blood
clot and dry blood swear over face. Wound place lateral
to right eye.
(ii) Abrasion ½" x ½" over scalp.
(iii) Bruise 3" x 2" right shoulder.
(iv) Swelling 2" x 2" with two abrasions ¼" diameter over left
elbow.
(v) Parallel bruise 4" x 1" fine in number back.
(vi) Swelling with ecchymoisis right upper and lower eye lids.
Age of injury-within four hours. Mole of identification-
Old scar right leg. All the injuries have been caused by
hard and blunt substance. Injury No. (ii) to (vi) are simple
in nature. Injury No. (i) is reserved till X-ray and report of
radiologist. As per report of radiologist Dr. M. Aind X-ray
plate no. PC-215 dated 14/12/01 of X-ray scuff A/P
lateral view. Crack of skull bone lateral to eye socket.
Hence injury no. (i) is grievous in nature.
P.W. 3 - the Doctor also examined other victim i.e. P.W.-5 Md.
Iltaf and found the following injuries on his body: -
(i) Swelling with tenderness 2" x ½" right ankle joint on lateral
aspect. As per X-ray report as noted B.H.T. by Surgeon Dr.
Suresh Kumar X-ray plat no. PC-216 dated 15/12/01 shows
fracture of lower and the fibula right leg. Hence the injury is
grievous in nature.
17. The learned trial court recorded that P.W.-4 Deepak Paswan
was an eye-witness to the occurrence, who narrated the story
in the same manner as by the informant and the victim. He has
brought the victims to the Sadar Hospital, Hazaribag by a bus
coming from Chatra. The learned trial court also recorded that
although almost all steps were taken, but none other
prosecution witnesses had turned up for evidence.
18. The accused were examined under Section 313 of Cr.P.C., in
which, they denied the prosecution case and claimed to be
innocent. The defence produced certain exhibits in relation to
G.R. Case No. 2953/01 as Ext.-A and the certified copy of the
charges of the said case as Ext. A/1 and A/2 respectively, in
which, the victims of the present case as well as eight others
were charged and also a copy of the judgment passed in G.R.
Case No. 2146/01, in which, the victims of the present case and
others were convicted for offence under Sections
147/337/427/504 of IPC.
19. It further appears that the prosecution also exhibited Ext.-3
which is the certified copy of the judgment passed in
Complaint Case No. 905/2001 dated 14/08/2008 by the
learned Judicial Magistrate, in which, Petitioner Nos.1, 8 and
another person namely, Shamsul Nissa were convicted under
Section 379 of IPC and in another case Petitioner Nos.1, 3, 9
and 12 were convicted and they had submitted their respective
probation bonds, which was exhibited as Exhibit-3/1, 3/2, 3/3
and 3/4. The Petitioners have brought on record a judgment
passed in Cr. Appeal No. 140/2008 dated 16.06.2015 by the
learned District & Additional Sessions Judge-VII, Hazaribag
whereby the aforesaid judgment passed in Complaint Case
No. 905/2001 dated 14.08.2008 was set-aside and all the three
accused, including present petitioner no. 1 and 8 were
acquitted.
20. The informant / victim of the case, P.W.-6 Anil Kumar Singh
he has fully supported the prosecution case. P.w-5, the other
victim of the case has also fully supported the prosecution
case.
21. The learned trial court considered evidences on record and
gave its finding as under: -
"In the facts and circumstances of this case as well as
material as apparent on the record it transpires that
although several case and counter case has undergone
between the parties. In his instance case accused counsel had
narrated that firstly there is delay in lodging the FIR and
2ndly I.O. had not been examined. These two major
contradictions creates doubt. But in my opinion and
observation, I find that since in this case victim Anil Singh,
Iltaf Ansari victim PW-6 and PW-5 respectively have
deposed their evidence in proving detailed. There does not
exist any contradiction on the issue of point of time, period
of time, date of occurrence, P.O, other then these two victims
their injuries had been corroborated by the evidence as done
by Dr. Chandra Prakash Choudhary vide his exhibits 1, 1/1
and that of ½ and 1/3 of victims namely Anil Singh and Iltaf
Ansari respectively. The prosecution evidence is also
supported by the deposition of PW-1 Md. Taslim Cycle
Mechanic, PW-2 Mantosh Paswan and PW-4 Deepak
Paswan. Accused have failed to state about any sort of
enmity of these witnesses with accused persons. All these
were eye witness even they have brought these injured
persons through Bhuneshwar Bus coming from Chatra at
around 9:00 P.M to Sadar Hospital, Hazaribag. This has
also been uttered by almost all witnesses that all the accused
persons who were carrying Bhujali, Lathi in their hand
created on unlawful assembly. They have attacked over
informant and Iltaf Ansari as such causing grievous injury
to them. Charkhu had hit with Bhujali to Anil Singh. Afjal
Ansari had hit with Iron-Pipe over right leg. Rest Accused
persons have beaten with stick. In the aforementioned
circumstances all the accused persons are held guilty u/s
147/148/341/323/506/34 of the IPC. Accused namely
Charkhu who had hit with Bhujali several times just beside
the eye and head of Anil Singh is also held guilty u/ss
147/148/341/323/326/506/34 of the IPC and Afjal Mian
who had hit with Iron Pipe over the leg of Iltaf is also held
guilty u/ss 147/18/341/323/326/506/34 of the IPC. Their
bail bond is cancelled and they are taken into judicial
custody."
22. The learned appellate court also considered the materials on
record and recorded its findings in Para-7 that all the
prosecution witnesses have stated that the occurrence took
place in front of the house of Sarju Ram and on this point, no
question was asked from any witness during their cross-
examination and the Informant has stated the boundary of the
place of occurrence. In such circumstances, non-examination
of the investigating officer of the case was not fatal to the
prosecution case. However, the learned appellate court
acquitted all the petitioners from the charges under Sections
148 and 504/34 of the Indian Penal Code and also did not find
any prima facie case under Sections 148, 326 and 506 of the
Indian Penal Code against the petitioners. The appellate court
convicted the petitioner no. 5 and 12 under section 325 IPC
instead of their conviction under section 326/34 IPC.
23. After hearing the learned counsel for the parties and going
through the records of the case, this Court finds that P.W.-6
Anil Kumar Singh is the informant of the case and he is also an
injured eye witness to the occurrence. He has fully supported
his version as stated in his fardbeyan. P.W.-5 Iltaf Mian is the
other injured eye witness of the case and he has also fully
supported the prosecution case and thereby, he has
corroborated the evidence of the informant. This Court further
finds that P.W.-1, P.W.-2 and P.W-4 have also supported the
prosecution case and P.W.-3, the doctor has corroborated the
injuries caused to both the main victims of the case i.e P.W-5
and 6.
24. This Court finds that all the prosecution witnesses are
consistent regarding assault particularly upon P.W-5 and 6 .
There are concurrent findings recorded by the learned courts
below regarding conviction of the Petitioner Nos. 1 to 4 and 6
to 11 under Sections 147, 323, 341 of the Indian Penal Code. So
far the Petitioner Nos. 5 and 12 are concerned, there is specific
evidence that the Petitioner No.5 had hit Anil Kumar Singh by
means of bhujali and the Petitioner No.12 had hit the other
victim namely, Iltaf by means of iron rod causing grievous
injuries to both of them. This Court finds no illegality or
perversity in the conviction of the petitioners passed by the
learned appellate court. Accordingly, the conviction of the
petitioners passed by the learned appellate court is upheld.
25. So far the sentences of the petitioners are concerned,
considering the fact that the Petitioner Nos. 3 and 9 have
criminal antecedent, this Court is not inclined to interfere with
the sentences awarded to the Petitioner Nos. 3 and 9 by the
learned appellate court.
26. Considering the nature and gravity of the offence committed
by the Petitioner No.5 and Petitioner No.12 and also the fact
that Petitioner No.12 has criminal antecedent, this Court is also
not inclined to interfere with the sentences awarded by the
learned appellate court to the Petitioner No.5 and 12.
27. Accordingly, the conviction and the sentences of the
Petitioner Nos. 3, 5, 9 and 12 passed by the learned appellate
court is upheld.
The bail bonds furnished by the Petitioner Nos. 3, 5, 9 and
12 are cancelled.
28. However, considering the fact that the occurrence is of the year
2001 and more than 20 years have already elapsed and the
Petitioner Nos. 2, 4, 6, 7, 8, 10 and 11 have no criminal
antecedent and they have already remained in judicial custody
for some period, ends of justice would be served, if their
sentences are modified to some extent by imposing fine. So far
as petitioner No.1 is concerned, he is aged about 85 years at
present and although he has one criminal antecedent, this
Court is of the view that no useful purpose will be served by
sending him to jail at this stage of his life and ends of justice
would be served, if his sentence is also modified to some extent
by imposing fine.
29. Accordingly, the sentences of the Petitioner Nos. 1, 2, 4, 6, 7, 8,
10 and 11 are modified and reduced to the period undergone
by them in judicial custody with fine of Rs. 10,000/- each [Rs.
1000/- each for offence under section 323 IPC; and Rs. 9,000/-each
for offence under section 147 IPC] to be deposited by them before
the learned court below within a period of three months from
the date of communication of a copy of this Judgment to the
learned court below.
30. The 50% of the fine amounts, so deposited by Petitioner Nos.
1, 2, 4, 6, 7, 8, 10 and 11, shall be remitted to the two victims of
the case namely, Anil Kumar Singh and Iltaf Mian in equal
proportion after due identification. If the aforesaid fine
amount is deposited within stipulated time frame, the bailors
of the respective petitioners will be discharged from their
liabilities under the bail bond. In case, the fine amounts are not
deposited within the stipulated time frame, the bail bonds
furnished by them will be immediately cancelled by the
learned court below and they would serve the sentences as
imposed by the learned appellate court.
31. Accordingly, with the aforesaid findings, and modification of
sentence of Petitioner Nos. 1, 2, 4, 6, 7, 8, 10 and 11 with the
aforesaid condition, this criminal revision application is
hereby disposed of.
32. The sentences of the Petitioner Nos. 3, 5, 9 and 12 passed by
the learned appellate court do not call for any interference.
33. Let the lower court records be sent back immediately to the
court concerned.
34. Let a copy of this order be communicated to the learned court
below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Mukul
