Abul Sheikh (Died) vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 2815 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             Cr. Appeal (DB/SJ) No. 431 of 1993 (P)
Against the judgment of conviction and order of sentence both dated
24.09.1993 passed by Shri Rajendra Prasad Rai, learned 1st
Additional Sessions Judge, Sahibganj in Sessions Case No. 78 of
1987/116 of 1993.
                            --

1. Abul Sheikh (died)

2. Giyas Sheikh (died)

3. Mojahir Sheikh ... ... ... Appellants Versus The State of Bihar (now Jharkhand) ... ... ... Respondent

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PRESENT SRI SANJAYA KUMAR MISHRA, C.J.

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For the Appellants:     Mr. Sunil Kumar Mahto, Advocate
For the State:          Mr. Abhay Kumar Tiwari, APP
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14/Dated: 11.08.2023

I.A. No. 4321 of 2018

By filing this Interlocutory Application, the learned counsel for

the appellants has prayed to delete the name of appellant no. 2-Giyas

Sheikh, as he has died in the meantime.

Learned counsel for the State through the Assistant Sub

Inspector of Police, Barhrwa Police Station, District Sahibganj, has

also filed an affidavit to the effect that they verified and found that the

said appellant has died.

Thus, the appeal, as far as appellant no. 2-Giyas Sheikh is

concerned, abates. It is also borne out from the records that the main

accused-Abul Sheikh, who has been convicted for the offence of

murder and sentenced to undergo imprisonment for life has already

died in the case and his name has been deleted.

Accordingly I.A. No. 4321 of 2018 stands disposed of.

Cr. Appeal No. 431 of 1993

1. Appellant no. 3-Mojahir Sheikh, his father Abul Sheikh and his

brother Giyas Sheikh were chargesheeted for the offence under

Section 452 of the Indian Penal Code, 1860 (hereinafter referred to as

'Penal Code' for brevity), and the accused Abul Sheikh, since

deceased, stood also charged for the offence under Section 302 of the

Penal Code. After trial they have been convicted by the 1st Additional

Sessions Judge, Sahibganj in Sessions Case No. 78 of 1987/116 of

1993 as per the judgment dated 24.09.1993.

2. The facts of the case may be described as follows :-

The informant of this case is Jaibun Bewa, the mother of the

deceased-Reyasat Sheikh, happens to be the sister of late appellant-

Abul Sheikh. On 12.04.1986 at about 4:00 p.m., the accused Abul

Sheikh suddenly entered into the house of the informant. Seeing him

entering into the house, the informant and her other family members

protested and they asked him to go out because he was of a very bad

character. The informant's son Reyasat Sheikh asked the accused

Abul Sheikh to get out of his house. At that time, Abul Sheikh was in a

very drunken condition and he could not get out of the house. In the

meantime, the accused Giyas Sheikh and Mojahir Sheikh, sons of the

accused-Abul Sheikh, came running to the house of the informant.

Both the sons of Abul Sheikh entered into altercation with Reyasat

Sheikh on the point as to why the informant and Reyasat Sheikh told

their father to get out of their house. At that time all of sudden, Abul

Sheikh, who was holding a Khoncha in his hand attacked Reyasat

Sheikh on his head which caused a deep piercing injury leading to his

death. Thereafter, information was lodged in the police station. The

investigation of the case was taken up and upon completion of

investigation, chargesheet was framed against the accused persons

under Sections 448, 324, 326 and 302 read with Section 34 of the

Penal Code. The First Information Report was registered against the

accused under Sections 448, 324, 307/34 of the Penal Code.

However, chargesheet was submitted under Section 302 and other

Sections of the Penal Code, as stated in the preceding sentence.

However, while framing charge, the learned Sessions Judge framed

charged under Section 452 of the Penal Code against the surviving

appellant.

In course of hearing, the appellants took the plea of denial and

false implication. They pleaded not guilty of the offences as alleged.

3. In order to prove its case, the prosecution has examined

altogether 16 witnesses. Since the main part of the prosecution

allegation, i.e., the murder of the deceased is not required to be

answered at this time because of the death of appellant no.1-Abul

Sheikh, the learned counsel for the appellants would confine his

argument to the conviction of the surviving appellant no. 3-Mojahir

Sheikh under Section 452 of the Penal Code.

4. It is submitted on behalf of appellant no.3 even that if it is held

that the prosecution has proved its case beyond all reasonable doubts

against the surviving appellant an offence under Section 452 of the

Penal code is not made out, as it is not the case of the prosecution

that appellant no. 3, made any preparation before trespassing into the

house of the deceased. Rather, he would submit that an offence under

Section 448 of the Penal Code is at best made out. It is also borne out

from the record that the offence took place on 12.04.1986 in the

meantime 37 years have elapsed. At the time of commission of the

offence, appellant no. 3 was 25 years old and now he is about 62

years old. Furthermore, from the evidence, it is clear that the

witnesses have not stated that they have made preparation for

commission of any offence or for assaulting any person or for

wrongfully harming any person etc. So, the necessary ingredients that

is required to be proved is that there should be a preparation before

the house trespass for committing the offence(s). In this case, though

the informant has taken that this appellant was holding a farsa it

cannot be said that he had made preparation for making assault. In

any case, the occurrence took place in spur of moment, therefore, this

Court is of the opinion that the prosecution has not established its

case beyond all reasonable doubts that the appellant made

preparations for committing assault prior to committing the trespass

and hence, the conviction under Section 452 of the Penal Code is

erroneous and the same is converted into a conviction under Section

448 of the Indian Penal Code. As stated above, in the meantime, 37

years have elapsed and now appellant no. 3 is more than 62 years of

age. It is also borne out from the record that he was in custody during

investigation and after conviction for a total period of two months.

Keeping in view the facts of the case, this Court is of the opinion that

the period undergone is sufficient to meet the ends of justice.

5. In that view of the matter, the appeal is allowed in part. The

conviction of appellant No. 3-Mojahir Sheikh under Section 452 of the

Penal Code is converted into conviction under Section 448 of the

Penal Code and he is sentenced to the period already undergone.

Appellant no. 3 is on bail. The appellant be set at liberty by cancelling

his bail bond executed before the learned Trial Judge.

6. Pending application, if any, stands disposed of.

7. Records of the Trial Court be transmitted to it, forthwith, along

with a copy of this judgment.

(Sanjaya Kumar Mishra, C.J.)

N.A.F.R.

APK/VK