Jharkhand High Court
Sattar Sai Aged About 55 Years vs The State Of Jharkhand on 1 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (DB) No. 470 of 2022
1. Sattar Sai aged about 55 years, son of Samsuddin Sai
2. Affaque Sai aged about 50 years, son of Samsuddin Sai
3. Sahban Sai aged about 21 years, son of Sattar Sai
4. Amir Sai aged about 24 years, son of Sattar Sai
All are residents of village - Khetko, P.O.-Khetko, P.S. Penk
Narayanpur, District-Bokaro ... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Jitendra S. Singh, Advocate
: Ms. Sonu Kumari, Advocate
For the State : Mr. Saket Kumar, APP
For the Informant : Mr. Rajesh Kumar, Advocate
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st
Order No. 04/Dated: 1 August 2023
I.A. No. 5509 of 2023
This application has been filed by the appellant No. 2, namely,
Affaque Sai, under Section 389(1) of the Code of Criminal Procedure
seeking suspension of sentence awarded to him in Sessions Trial
No. 174 of 2020, in which, Sattar Sai, Sahban Sai and Amir Sai have
also been convicted and sentenced to imprisonment for life and a fine
of Rs. 10,000/- under Section 302/149 of the Indian Penal Code with a
default stipulation to undergo further RI for four months; RI for two
years under Section 324/149 of the Indian Penal Code; RI for two
years under Sections 147 and 148 of the Indian Penal Code, and; RI
for one year each under Sections 504/149 and 506/149 of the Indian
Penal Code.
2. Mr. Jitendra S. Singh, the learned counsel for the
appellant/applicant has referred to order dated 16 th May 2023 by
which sentence awarded to Amir Sai has been suspended in Criminal
Appeal (D.B.) No. 470 of 2022.
3. During the trial, the prosecution has examined 14 witnesses out
of whom PW 4, PW5 and PW6 are the injured witness. The
prosecution has proved the injury reports of PW4, PW5 and PW6
through Dr. Albel Kerketta who tendered evidence as PW12.
2 Cr. Appeal (DB) No. 470 of 2022
4. The case of the prosecution is that Allimuddin Ansari when
raised an objection against Sattar Sai bringing a Tractor loaded with
bricks from outside, the accused started abusing him. After sometime
Sattar Sai accompanied by 10 other accused persons came to the house
of Allimuddin Ansari and Sattar Sai gave a blow on his head by an
iron rod. This is the case of the prosecution that PW4, PW5 and PW6
who are the sons of Allimuddin Ansari when intervened, the accused
persons have assaulted them also.
5. PW11 is the doctor who conducted the post-mortem
examination over the dead body of Allimuddin Ansari on 18th April
2020 at about 3:30 PM and found the following injuries:
"External Injuries:-
I. Incised stab wound over right temporal region extending deep into
brain substance stab wound sized 2" x 2 1/2"
II. Incised stab wound sized 1.5" x 1/2" over the right parietal region
extending deep into the brain substance sized 2" deep.
III. Incised wound at the base of the right middle finger on the dorsal
aspect (skin of the ventral aspect intact but the skin, soft tissue and bone
right from the dorsal aspect are cut).
IV. All wounds are ante-mortem in nature and likely to be produced by
sharp cutting and heavy object.
V. The brain substance and the meninges underneath the wound no.1&2
are sharply cut and rest of the findings are normal.
VI. Cause of death- craniocerebral injury and exsanguination within 24
hours.
VII. Above mentioned injuries may be caused by axe also."
6. Mr. Jitendra S. Singh, the learned counsel appearing for the
applicant, has raised a plea that the medical evidence which reflects
three incised wounds is in sharp variation to the ocular evidence, that
Sattar Sai has assaulted Allimuddin Ansari with an iron rod on his
head. This piece of evidence has been placed by the learned counsel
for the applicant to demonstrate that the judgment in Sessions Trial
Case No. 174 of 2020 is vulnerable.
7. Mr. Saket Kumar, the learned counsel for the State has
opposed the prayer for suspension of sentence.
8. Mr. Rajesh Kumar, the learned counsel for the informant has
also opposed the prayer for suspension of sentence by raising a
specific ground that the applicant has been convicted with the aid of
section 149 of the Indian Penal Code.
9. On a glance at the evidence of PW4, PW5 and PW 6, we
observe that there is no direct or specific allegation against the
3 Cr. Appeal (DB) No. 470 of 2022
applicant of assaulting Allimuddin Ansari and only a general and
omnibus allegation has been made against him that he has also
assaulted Allimuddin Ansari. The evidence of PW4, PW5 and PW6
further indicates that there is no specific allegation against the
applicant that he has mounted attack on them.
10. The application of section 149 of the Indian Penal Code would
be dependent upon the prosecution establishing that the death of
Allimuddin Ansari has been caused and injuries were caused to PW4,
PW5 and PW6 in furtherance of common object of the unlawful
assembly. However, there is no discussion by the trial Judge on
applicability of section 149 of the Indian Penal Code to rope in the
applicant for the offence under section 302 of the Indian Penal Code.
11. The appellant No. 2 is in custody since 1st February 2021.
12. Having regard to the aforesaid facts and circumstances, the
appellant no.2, namely, Affaque Sai is directed to be released on bail,
during pendency of this appeal, on furnishing bail-bonds of
Rs.10,000/-(Rupees ten thousand) with two sureties of the like amount
each to the satisfaction of the learned Additional Sessions Judge-III,
Bermo at Tenughat in connection with Sessions Trial Case No. 174 of
2020, subject to the conditions that :
(i) the appellant shall remain physically present or through his
authorized counsel in the Court whenever this criminal appeal is listed
for hearing in the Court, however, if no one appears on his behalf on
the day when this criminal appeal is listed on Board for hearing the
State may file an application for recall of this order, and;
(ii) the appellant shall disclose his present address, mobile number and
Aadhaar card to the investigating officer of the case.
13. I.A. No. 5509 of 2023 stands disposed of.
14. Let a copy of this order be transmitted to the Court concerned
and the concerned Jail Superintendent through FAX.
(Shree Chandrashekhar, J.)
(Anubha Rawat Choudhary, J.)
Mukul
