Jharkhand High Court
Kurban Miyan @ Kurban Ansari vs The State Of Jharkhand on 20 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.899 of 2022
1. Kurban Miyan @ Kurban Ansari
2. Kali Mullah @ Munna Ansari ..... Appellants
Versus
The State of Jharkhand .... Respondents
With
Cr. Appeal (SJ) No.923 of 2022
Kamaluddin Mian @ Kamalu Mian & Ors. ..... Appellants
Versus
The State of Jharkhand .... Respondent
CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellants : Mr. Ram Prakash Singh, Advocate
For the State : Mr. Anup Pawan Topno, Addl. PP
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5/20.03.2023 Heard, learned counsel appearing on behalf of the appellants
and learned Addl. P.P. appearing on behalf of the State.
Learned counsel appearing on behalf of the appellants
submitted that I.A. No.11972 of 2022 has been filed with a prayer to
enlarge the appellants Kurban Miyan @ Kurban Ansari and Kali
Mullah @ Munna Ansari on bail during pending of this appeal by
suspending the order of execution of sentence.
Learned counsel appearing on behalf of the appellants
submitted that this appeal has been preferred against the judgment of
conviction dated 19.11.2022 and order of sentence dated 28.11.2022
passed by the learned Additional Session Judge, Nagar Untari Garhwa
in Session Trial No.122 of 2010 arising out of Nagar Untari P.S. Case
No.271 of 2009, corresponding to G.R. Case No.1259 of 2009 whereby
and whereunder the appellants were found guilty for the offence
punishable under Sections 147, 323/149, 307/149 of IPC and the
appellants were sentenced for R.I. for 5 years and shall pay fine of
Rs.2,000/- for the offence punishable under Sections 307/149 of IPC
and in default of payment of fine, they shall further undergo R.I. for a
period of 2 months in addition and further undergo R.I. for the period
of 1 year for the offence punishable under Sections 323/149 of IPC and
further undergo R.I. for the period of 1 year for the offence under
Section 147 of IPC, however all the sentences were directed to run
concurrently.
It has been pointed out that allegation against the appellants are
that they have assaulted the informant and other persons of informant
people by lathi and danda and the dispute arose because of the landed
property, which is an admitted fact.
Further, it has been pointed out that the learned trial court did
not appreciate the evidences adduced on behalf of the appellants in
the right perspective and did not give the equal weightage to the
witnesses examined on behalf of the defence evidence adduced on
behalf of the appellants.
Further, it has been pointed out that the I.O. in this case has not
been examined and as such it has caused serious prejudice to the
appellants as neither the weapon alleged to have been used in the
commission of the offence have been recovered nor the appellants got
the opportunity to draw the attention of the Doctor about the nature of
the weapon used in the commission of the offence for such type of
injury which are alleged to have been inflicted upon the injured
persons.
Further, it has been pointed out that neither any knowledge nor
intention could be inferred from the acts of appellants for committing
the offence of attempt to murder in order to hold the guilty inter alia
for the offence punishable under Section 307 of IPC in absence of
formal proof of time, date and place of occurrence due to non-
examination of I.O. and also in absence of the recovery of weapons, if
any, used in the commission of alleged offence and therefore, the
conviction is bad in law and fit to be set aside.
It has also been stated that both the appellants have remained in
jail about more than four months including the pre-conviction period
and post-convicting period and therefore, it is urged on behalf of the
appellants that let the appellants be enlarged on bail during pending
of this appeal. It has also been pointed out on behalf of appellants that
this appeal is not likely to be heard in near future.
On the other hand, the learned Addl. P.P. appearing on behalf
of the State opposed the contentions raised on behalf of the appellants.
Having heard both the parties, perused the record of this case. In
the light of the forceful submission advanced on behalf of the
appellants, this Court finds that it just and proper in the interest of
justice to enlarge the appellants on bail during pending of this appeal.
Accordingly, the appellants Kurban Miyan @ Kurban Ansari
and Kali Mullah @ Munna Ansari are directed to be enlarged on bail
on furnishing bail bond of Rs.25,000/- (Rupees Twenty Five
Thousands Only) each with two sureties of the like amount each, to
the satisfaction of learned Additional Session Judge, Nagar Untari
Garhwa in Session Trial No.122 of 2010, arising out of Nagar Untari
P.S. Case No.271 of 2009, corresponding to G.R. Case No.1259 of 2009,
subject to condition that payment of entire fine amount as awarded by
the learned court below to each of the appellants in the various heads/
counts shall be deposited in the court below in order to give it to the
P.W-1 (Safique Ansari) by way of compensation without being
prejudice to their right of defence.
The learned court below is directed to issue notice to the
informant/P.W.-1 and after his appearance and proper identification
the entire fine amount so deposited by the appellants shall be
disbursed to him.
I.A. No.11972 of 2022 gets disposed of accordingly.
The original Lower Court Records has been received. Let it be
posted under the heading "For Hearing" in its seriatim.
(Navneet Kumar, J.)
R.Kumar
