Anwar Ansari vs The State Of Jharkhand
2022 Latest Caselaw 5195 Jhar

                                            Cr. Appeal (D.B.) No. 95 of 1994
                                1

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Appeal (D.B.) No. 95 of 1994
[Against the Judgment of conviction and order of sentence dated
15.06.1994, passed by Sri Bal Govind Prasad, learned Additional
Judicial Commissioner-III, Ranchi in connection with Sessions Trial
No. 394 of 1993, arising out of Mandar P.S. Case No. 22 of 1993,
corresponding to G.R. No.822 of 1993]
     1. Anwar Ansari
     2. Khurshid Ansari                                    ...     Appellants
                               -Versus-

     The State of Jharkhand                                ...     Respondent
                             ----------

PRES ENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH

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For the Appellants        : M/s. S. S. Ahmed, Advocate
For the State             : M/s. Ravi Prakash, Spl.P.P.
                                ---------
C.A.V. On 23.08.2022                          Pronounced On: 22.12.2022

1. Heard Mr. Syed Saif Ahmed, learned counsel appearing for the appellants and Mr. Ravi Prakash, learned Spl.P.P.

2. This appeal is directed against the Judgment of conviction and order of sentence dated 15.06.1994, passed by Sri Bal Govind Prasad, learned Additional Judicial Commissioner-III, Ranchi in connection with Sessions Trial No. 394 of 1993, arising out of Mandar P.S. Case No. 22 of 1993, corresponding to G.R. No.822 of 1993, whereby and wherein, the learned Additional Judicial Commissioner-III, Ranchi, held the appellants Anwar Ansari and Khurshid Ansari, guilty of the offences under Sections 448/ 341/ 302/ 34 of the Indian Penal Code and thereby, sentenced them to undergo imprisonment for life for the offences under sections 302/34 of the Indian Penal Code and R.I. for six months under section 448 of the Indian Penal Code and R.I. for one month for the offence under section 341 of the Indian Penal Code. The appellant Anwar Ansari was further sentenced to undergo R.I. for six months for the offence under section 323 of the Indian Penal Code, all the sentences were ordered to run concurrently.

3. Prosecution case was instituted on the basis of fardbeyan of the Cr. Appeal (D.B.) No. 95 of 1994

informant Shiv Kunwar Devi alleging therein that on 16.03.1993 at about 11:00 P.M., her husband Chhedi Gope told the appellants not to urinate near their wall which was outside his house as the stench of urine was unbearable. Chhedi Gope in order to express his anguish gave several spade blows on the wall of the appellant Khurshid Ansari due to which a portion of wall was damaged. Thereafter, he returned home. Both the appellants followed him to his house. The appellant Anwar Ansari slapped Chhedi Gope while the appellant Khurshid Ansari picked up a spade lying there and assaulted him due to which he sustained injuries, thereafter, both the appellants receded from there. Later on Chhedi Gope was taken to hospital where he died during the course of treatment.

4. After investigation, police found the occurrence to be true and submitted charge-sheet against the appellants on 04.06.1993 under sections 448/ 341/ 323/ 324/ 302/ 34 of the Indian Penal Code. After cognizance Sri J.S.P. Choudhary learned Judicial Magistrate committed the case to the Court of Sessions on 16.06.1993, as it was exclusively triable by the Sessions Court.

5. Charge was framed against the appellants on 23.08.1993, under Sections 448/ 341/ 323/ 302/34 of the Indian Penal Code. The contents of the charge were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution has adduced both oral and documentary evidence.

7. Harakh Gope (P.W.1), Shyam Sundar Singh (P.W.3), Anand Gope (P.W.4) and Kailash Singh (P.W.5) are hearsay witnesses. Harakh Gope (P.W.1) has proved his signature on fardbeyan which has been marked as Ext.1. Anand Gope (P.W. 4) has proved his signature on the fardbeyan of the informant which has been marked as Ext. 1/1.

Krishna Gope (P.W.2) is witness of the inquest. He has proved his signature and that of his brother on the inquest report which have been marked as Ext. 2 series.

Ram Nandan Gope (P.W.6) has been tendered by the prosecution.

Cr. Appeal (D.B.) No. 95 of 1994

Bina Devi (P.W.7) the daughter of the deceased and Shiv Kunwar Devi (P.W.8) the informant are eye witnesses and have supported the prosecution case.

Dr. Ajit Kumar Choudhary has performed the postmortem on the dead body of the deceased. He has proved the postmortem report which has been marked as Ext. 3.

Bhola Ram (P.W. 10) is the Investigating Officer of this case, he has proved the fardbeyan which has been marked as Ext. 4. He has proved the formal FIR which has been marked as Ext. 5. He has also proved the place of occurrence which is the courtyard of the deceased Chhedi Gope.

8. Statement of the appellants were recorded under Section 313 Cr.P.C. Defence is general denial of the occurrence and false implication.

9. On the basis of the evidence, both oral and documentary, available on record, learned Additional Judicial Commissioner-III, Ranchi held the appellants, guilty of the offences under Sections 448/ 341/302/34 and 323 of the Indian Penal Code and sentenced them accordingly.

10. Mr. Syed Saif Ahmad learned lawyer appearing on behalf of the appellants submitted that the ocular account of the witnesses, that the appellant Khurshid Ansari had given spade blow to the deceased is contradicted by the finding in the postmortem report as no sharp cutting injury was found by Dr. Ajit Kumar Choudhary. It was further submitted that it was a simple case of scuffle between the parties which has been converted into a case of culpable homicide amounting to murder. On these grounds, it was prayed that the judgment of conviction and order of sentence passed by the learned court below be set aside and the appellants be acquitted of the charge.

11. Mr. Ravi Prakash, learned Spl. P.P. has submitted that the witnesses have corroborated each other on the point of material particulars of this case. They have stated that the appellant Khurhsid Ansari had given spade blows to the deceased Chhedi Gope due to which he succumbed to his injuries and the doctor who has performed the postmortem has stated in his cross-examination that the injuries sustained by the deceased can be caused Cr. Appeal (D.B.) No. 95 of 1994

by sharp edge of the spade. Accordingly, it was prayed that this appeal be dismissed.

12. Now, it has to be ascertained whether the prosecution has been able to prove its case against the appellants beyond the shadow of all reasonable doubts.

13. In order to come to the aforesaid finding, it has to be ascertained: -

(i) Whether the deceased Chhedi Gope died a homicidal death?

(ii) Whether the appellants caused homicidal death of the deceased amounting to murder?

14 Shyam Sundar Singh (P.W.3), Anand Gope (P.W.4), Kailash Singh (P.W.5) all have stated that on "hulla," when they went to the house of the informant they saw Chhedi Gope lying there with injuries on his head and blood was oozing from his injuries. They have further stated that Chhedi Gope was taken to hospital where he succumbed to his injuries.

Dr. A. K. Choudhary (P.W.9) has performed postmortem on the dead body of the deceased. According to him he found following injuries on the person of the deceased: -

Stitched wounds: (5 stitches) united

(i) 6 cm X 1cm, Scalp deep over right parietal region.

(ii) 1 cm X ½ cm, Scalp deep over right frontal region.

Internal Injuries There is diffused contusion of right temporal-parietal scalp.

There was a crack fracture of right parietal bone measuring 10 cm. long. There was presence of subdural blood and blood clots over both sides of brain but more on right side.

All the injuries were ante-mortem in nature.

The doctor has opined that opinion of stitched wound can be had from the surgeon concerned and internal wound caused by hard and blunt substance.

This witness has not opined on the nature of the injury as the injuries on the person of the deceased was stitched. According to him the opinion regarding the nature of injury can be had from the surgeon who had Cr. Appeal (D.B.) No. 95 of 1994

stitched the wound. He also stated that the internal wound was caused by hard and blunt substance. However, in his cross-examination he has stated that stitched wounds may be caused by sharp cutting weapons like spade.

From the perusal of postmortem report (Ext. 3), it transpires that the findings of Dr. Ajit Kumar Choudhary, (P.W.9) as stated in his evidence before the court is corroborated by the averments made in the postmortem report (Ext.3).

From the aforesaid oral and documentary evidence, it is apparent that that the deceased Chhedi Gope died due to head injuries which were ante-mortem in nature. Accordingly, the prosecution has been able to show that the deceased died a homicidal death.

15. It is further the case of the prosecution that there was an altercation between the deceased and the appellants. The deceased had asked the appellants not to urinate near their wall which was outside his house, as the stench of urine was unbearable. In anguish he had given spade blows on the wall of the appellants which was damaged. The appellants followed him to his house. The appellant Anwar Ansari is said to have slapped him, while the appellant Khurshid Ansari picked up the spade lying there, gave spade blow on his head due to which he sustained injuries. He died during the course of treatment.

16. In order to prove the aforesaid facts, the prosecution has examined Bina Devi (P.W.7) and the informant Shiv Kunwar Devi (P.W.8). Both have stated that on the date and time of occurrence, deceased Chhedi Gope had asked the appellants not to urinate near their wall which was outside his house and to show his anguish he gave spade blow on their wall due to which a portion of mud fell. Thereafter, Chhedi Gope returned home. He was sitting in the courtyard when both the appellants followed him. Anwar Ansari slapped Chhedi Gope while Khurshid Ansari picked up the spade lying there and gave a spade blow on his head due to which he sustained injuries. Chhedi Gope was taken to hospital next day, where he died during the course of treatment. Both these witnesses have identified the appellants in the dock. Both these witnesses have been cross-examined Cr. Appeal (D.B.) No. 95 of 1994

at length.

17. Bina Devi (P.W.7) in her cross-examination has stated that the spade belonged to her father. She has also stated that the on her "hulla" witnesses Kailash, Harakh and Anand came to the place of occurrence. Shiv Kunwar Devi (P.W.8) in her cross-examination has stated that her husband had broken the wall of the appellants by spade. He returned home and sat in the courtyard and laid the spade beside him. The appellant, Khurshid Ansari, used the same spade in assaulting her husband.

18. Witnesses Harakh Gope (P.W.1), Shyam Sundar Sing (P.W.3), Anand Gope (P.W.4), Kailash Singh (P.W.5) are the neighbours of the informant, they have stated that on" hulla" by the informant they went to her house and saw Chhedi Gope lying there with injury on his head.

19. From the perusal of the oral testimony of the aforesaid witnesses it is apparent that both Bina Devi (P.W.7), Shiv Kunwar Devi (P.W.8) have corroborated each other on the material particulars regarding the manner of occurrence. Their oral testimony is also corroborated by the evidence of Dr. Ajit Kumar Choudhary, (P.W.9) who had found stitched wounds on the head of the deceased. The deceased had also sustained internal injuries. According to this witness, injuries sustained by the deceased could be caused by sharp edge of the spade. Thus it is apparent that ocular account of Bina Devi (P.W.7) and Shiv Kunwar Devi (P.W.8) is corroborated by the medical evidence. Other witnesses have also corroborated the fact that they had seen head injuries on the person of the deceased.

Learned lawyer appearing on behalf of the appellants has relied upon a decision reported in 1974 SCR (3) 652 wherein it was held that:-

"Where there is an allegation of assault by an axe, there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication, it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp edged or a piercing instrument was used as blunt weapon"

Dr. Ajit Kumar Choudhary (P.W. 9) has not given any opinion Cr. Appeal (D.B.) No. 95 of 1994

regarding the nature of external injuries sustained by the deceased. However, in his cross-examination he has stated that the injury can be caused by sharp edge of the spade. So there is no discrepancy in the prosecution case regarding the manner of occurrence and the findings in the postmortem report.

20. In view of the aforesaid facts and circumstances, we come to a finding that the prosecution has been able to prove that the deceased Khurshid Ansari gave spade blows on the person of the deceased due to which he succumbed to his injuries and died.

21. Now the question is whether from the aforesaid facts and circumstances, the accused Khurshid Ansari and Anwar Ansari can be held guilty for the offence under section 302 of the Indian Penal Code.

22. According to Bina Devi (P.W.7) and Shiv Kunwar Devi (P.W.8) appellant Anwar Ansari had only slapped the deceased. Both the appellants had followed the deceased and entered his house as he had damaged the wall. They had come unarmed. It further transpires that the Khurshid Ansari picked up the spade lying near the deceased and assaulted him. It is apparent that the occurrence took place on the spur of the moment.

23. From the aforesaid facts, it is apparent that there was no intention of the appellants to commit murder of the deceased, when they went inside his house. Appellant Khurshid Ansari had picked the spade lying there and assaulted the deceased on the spur of the moment. The assault was not premeditated The appellant Anwar Ansari cannot be said to be having common intention with appellant Khurshid Ansari to assault Chhedi Gope by spade. He had only slapped the deceased.

As already discussed, Khurshid Ansari had assaulted the deceased Chhedi Gope on the spur of the moment due to which he died. This case will be covered by exception 4 of the Section 300 of the Indian Penal Code.

24. In view of the aforesaid facts, judgment of conviction and order of sentence passed by the learned court below is modified. The judgment of conviction and order of sentence under section 302 of the Indian Penal Code against the appellants Khurshid Ansari and Anwar Ansari is set aside.

Cr. Appeal (D.B.) No. 95 of 1994

Appellant Anwar Ansari is held guilty for offence under sections 448/ 341/ 323/34 of the Indian Penal Code and is cumulatively sentenced to undergo S.I. for six months. Appellant Khurshid Ansari is held guilty of offence under section 304 Part II of the Indian Penal Code along with 448/ 341/ 34 of the Indian Penal Code. He is directed to undergo R.I. for 10 years for the offence under section 304 part II of the Indian Penal Code. No separate sentence is passed against the Appellant Khurshid Ansari for offences under sections 448/341/34 of the Indian Penal Code

25. This appeal is partly allowed.

26. The appellants are on bail. They shall be taken into custody if they have not already served the sentence.

27. Pending I.A., if any, also stands disposed of.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

Jharkhand High Court, Ranchi.

Dated:- 22.12.2022 Saurabh/NAFR