Jharkhand High Court
Anwar Mian vs The State Of Jharkhand on 19 November, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal ( S.J) No. 790 of 2007
1.Anwar Mian, son of Sikandar Mian,
2.Akbar Ansari, son of Mustaqueem Mian
3.Manawar Mian, son of Sikandar Mian,
4.Mannuna Khatoon @ Mamuna Khatoon W/o Sikander Mian
All are resident of Laxmandunda, P.S. Nimiyaghar, District-
Giridih. ...... Appellants
Versus
The State of Jharkhand ........ Respondent
with
Cr. Appeal ( S.J) No. 856 of 2007
1.Mubarak Mian son of Turbali Mian,
2.Rojan Ansari son of Mubarak Mian
All resident of village-Luxmantand, P.S-Nimiaghat, District-
Giridih ...... Appellants
Versus
The State of Jharkhand ........ Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mrs. J. Majumdar, Adv. (Cr. A.790/2007)
: Mr. Vijay Kr. Roy, Adv. (Cr. A.856/2007)
For the State : Mr. Manoj Kumar Mishra, APP
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CAV on: 03 July, 2024 Delivered on 19.11.2024
Both the criminal appeals being Cr. Appeal (SJ) No.790 of
2007 and Cr. Appeal (SJ) No.856 of 2007 have been heard
together and are being disposed of together, since, both have arisen
out of common judgment dated 20.06.2007 passed in S.T. No.319
of 2004 (T.R. No.119/2005) by Sri Kamlesh Mishra, learned
Additional Sessions Judge, F.T.C-VII, Giridih.
2. All the appellants i.e. Appellants-Anwar Mian, Akbar
Ansari, Sikander Mian @ Sikandar Ansari, Manawar Mian and
Mannuna Khatoon @ Mamuna Khatoon [Cr. Appeal (SJ)
No.790 of 2007] and appellants-Mubarak Mian, Kurban Ansari
and Rojan Ansari [Cr. Appeal (SJ) No.856 of 2007] have been
convicted vide judgment of conviction dated 20.06.2007 and
have been sentenced to undergo S.I for three (03) months and to
pay fine of Rs.500/- each passed by Sri Kamlesh Mishra, learned
Additional Sessions Judge, F.T.C-VII, Giridih for the offences
under Sections 337/34 of the I.P.C.
3. The prosecution case, in brief, is that on 25.06.2003 at
6.00 p.m when the informant came out of his house after hearing
the noise then he saw that hot exchange of words were taking
place between Kohu Turi and Sikandar Ansari regarding the
land and scuffling started between them, then he and his family
members objected both the parties not to quarrel to which
accused Sikander Mian, wife of Sikander Mian, Anwar and
Manawar Ansari assaulted with Danda and brick bats and
injured his brother by pelting stones and lathi. Meanwhile,
Mubarak Ansari, Rojan Ansari, Akbar Ansari and Kurban
Ansari came there armed with lathi and stones and abused them
and accused Sikandar Mian ordered his companions to kill them
and thereafter the accused persons had assaulted the informant
and his family members by chasing them and his brother had
sustained grievous injury and fell down on the ground.
4. Heard Mr. J. Mazumdar, learned counsel for the appellants
in Cr. Appeal (SJ) No.790/2007 and Mr. Vijay Kumar Roy,
learned counsel in Cr. Appeal (SJ) No.856/2007 and Mr. Manoj
Kumar Mishra, learned APP for the State in both the cases.
5. Mrs. J. Mazumdar, learned counsel for the appellant in Cr.
Appeal (SJ) No.790/2007 has submitted that the impugned
judgment of conviction and sentence both dated 20.06.2007 is
illegal, arbitrary and not sustainable in the eye of law. It is
submitted that the judgment of conviction and sentence passed
by the learned Court below are based on surmises and
conjectures. It is submitted that there is general and omnibus
allegation in the F.I.R against all the appellants for pelting stone
and causing injury to the informant and his brother. It is
submitted that P.W-2-Sabul Mian i.e. the informant of this case
and the P.W-4-Saheb Mian, the injured of this case are the
witnesses of the facts and have supported the case of the
prosecution and both are the full brothers and save and except
that not even a single prosecution witness has supported the
prosecution case. It is submitted that P.W-1 and P.W-3 namely
Khairat Ali Mian and Fulchand Pandit have been declared
hostile. It is submitted that P.W-2- Sabul Mian is the informant
whereas P.W-4-Saheb Mian is the injured and they are the full
brothers and they are interested witness. It is submitted that
P.W-6-Brajlal Mohan is the I.O of this case, who has merely
submitted charge sheet and admitted during cross-examination
for not seizing any stone. The Investigating Officer also
admitted for not mentioning the land dispute between the
parties. It is submitted that P.W-7-Jago Turi is also formal
witness. It is submitted that there is no injury report of the
informant. It is submitted that the appellants have also deposited
the fine amount as directed by the learned Court below.
It is submitted that the evidence of D.W-1 has been
discarded by the learned Court below although the learned Court
below is bound to consider the evidence of the defence witness
at par with the evidence of the prosecution witness. Thus, in
view of the above, the judgment of conviction and sentence
passed by the learned Court below may be set aside.
6. Mr. Vijay Kumar Roy, learned counsel for the appellants
in Cr. Appellant No.856 of 2007 has adopted the argument of
Mrs. J. Mazumdar, learned counsel for the appellants of Cr.
Appeal (SJ) No.790 of 2007.
7. On the other hand, learned APP for the State has submitted
that the impugned judgment of conviction and sentence passed
by the learned Court below is fit and proper and no interference
is required. It is submitted that all the appellants are named in
the FIR for assaulting the informant and for pelting stone at him
and his family members due to which informant-Sabul Mian and
one Saheb Mian sustained grievous injury. It is submitted that
all the prosecution witnesses have fully supported the case. It is
submitted that P.W-2 is the informant of this case who has fully
supported the prosecution case. It is submitted that P.W-4-Saheb
Mian is the injured and he has also supported and corroborated
the prosecution case. It is submitted that P.W-5 is Doctor Arun
Kumar Verma who had treated the injured Saheb Mina-P.W-4
and found injury on his forehead. It is submitted that P.W-6 is
the Investigating Officer of the case who has proved the F.I.R
and has also supported and corroborated the prosecution case. It
is submitted that P.W-7 is Jago Turi, who has proved the written
application in writing of his son Nirmal Turi as Exhibit-2/1.
Thus, no illegality has been committed by the learned Court
below while passing the impugned judgment of conviction and
sentence and hence both the Criminal Appeal may be dismissed.
8. Perused the Lower Court Records and considered the
submission of the learned counsel appearing for both the sides.
9. It transpires that the informant-Sabul Mian has lodged the
F.I.R on 25.06.2003 against the appellants-Anwar Mian, Akbar
Ansari, Sikander Mian, Manawar Mian and Mannuna Khatoon
@ Mamuna Khatoon [Cr. Appeal (SJ) No.790 of 2007] and
appellants-Mubarak Mian, Kurban Ansari and Rojan Ansari [Cr.
Appeal (SJ) No.856 of 2007] for the offences under Sections
341/323/337/338/506/307/34 of the IPC.
10. It transpires that the police, after making investigation,
had submitted charge sheet against the appellants under
Sections 341/323/337/338/506/307/34 of the IPC on
22.12.2003 before the learned CJM, Giridih. Thereafter the
learned C.J.M, Giridih had taken cognizance under Sections
341/323/337/338/506/307/34 of the IPC on 23.12.2003 and
committed the case to the Court of learned Sessions Judge.
11. After supplying the police papers to the appellants, the
charges were framed against the appellants on 20.01.2005 by the
learned Sessions Judge, Giridih under Section 341/34, 323/34,
307/34, 337/34, 338/34 and 506/34 of the IPC and to which they
pleaded not guilty and claimed to be tried.
12. During trial the prosecution had got examined seven (07)
witnesses in support of its case, who are as follows:
(i) P.W-1 is Khairat Ali Mian,
(ii) P.W-2 is Sabul Mian i.e. the informant,
(iii) P.W-3 is Fulchand Pandit,
(iv) P.W-4 is Saheb Mian,
(v) P.W-5 is Dr. Arun Kumar Verma,
(vi) P.W-6 is Brij Lal Mandal and
(vii) P.W-7 is Jago Turi.
13. The prosecution had got marked the following documents
as the Exhibits in support of its case, which are as follows:-
(i) Exhibit-1 is the carbon copy of injury report of Saheb Mian,
(ii) Exhibit-2 is the endorsement on the FIR,
(iii) Exhibit-3 is the formal F.I.R.,
(iv) Exhibit-1/1 is the Injury Slip and
(v) Exhibit-2/1 is the fardbeyan.
14. The prosecution in support of its case, got marked
Document- 'X' for identification by which injured Saheb Mian
was referred from Sadar Hospital, Giridih to Ranchi.
15. Thereafter the appellants were examined under section 313
Cr.P.C on 12.03.2007 by the learned Additional Sessions Judge,
F.T.C-VII, Giridih and to which they denied the circumstances
put forth before them.
16. The defence in support of its case, got examined one (01)
witness Shelal as D.W-1.
17. However, no document has been marked as exhibit on
behalf of the defence side.
18. Thereafter, the learned court below has convicted the
appellants for the offence under Section 337/34 of the IPC and
sentenced them to undergo S.I for three (03) months and to pay
fine of Rs.500/ each.
However, the learned Court below has acquitted the
appellants for the offence under Section 341/34, 323/34, 338/34,
506/34 and 307/34 of the IPC. Therefore, the evidence of the
prosecution is required to be seen.
19. P.W-1 is Khairat Ali Mian, who stated during his evidence
that he is not aware about the occurrence of this case. This P.W-
1 has been declared hostile by the prosecution.
Even during cross-examination, he denied to have given
any statement before the police and hence the evidence of P.W-1
is not reliable.
20. P.W-3 is Fulchand Pandit who stated that he learnt about
the occurrence while he was returning from his field but he had
not seen the occurrence. This P.W-3 has also been declared
hostile by the prosecution.
Even during cross-examination, he admitted that he had
not given any statement before the police. Thus, the evidence of
P.W-3 is not reliable.
21. P.W-5 is Dr. Arun Kumar Verma, who had examined the
injured Saheb Mian on 25.06.2003 at around 9.00 p.m and found
the following injuries:-
"(i) Cut wound on the forehead 1" x ½ " x skin
deep, curved by blunt and hard object.
Nature:- The nature of injury kept reserved. The
patient was advised X-Ray Skull A/P and Lateral view.
Report awaited and opinion reserved. The
injury was caused within twenty four hours of
examination."
He had proved the injury report of Saheb Mian-P-W-4 as
Exhibit-1.
During cross-examination, he stated that such injury is
possible by stone thrown.
Thus, it is evident that he has not mentioned the nature of
injury on the forehead and was waiting for the X-Ray Report
and has reserved his opinion but no X-ray Report was produced
before him during trial and also at the time of preparing the
injury report i.e. Exhibit-1.
Thus, this is a case of only injury on the head of the injured
Saheb Mian at best.
22. P.W-2 is Sabul Mian i.e. the informant of this case, who
has stated that while he was in his house then he came outside of
his house on hearing the noise and found that Pulwa Turi,
Sukhdeo Turi, Hemlal Turi, Jago Turi and Gomed Turi were
pelting with stone by accused Sikander Mian and the wife of
Sikander and Munawar, Alwar, Akbar, Kurban, Mubarak and
Rojan Ansari were also present. Then he tried to pacify both the
sides and upon which, Original Appellant no.3-Sikander Mian
(Cr. Appeal (SJ) No.790 of 2007) asked him to flee away but the
informant refused. Thereafter, Original Appellant no.3-Sikander
Mian (Cr. Appeal (SJ) No.790 of 2007) and people from his
group started pelting stone and due to assault of stone made by
Sikander, his brother Saheb Mian sustained injury on his head
and leg and the informant was also hit by the stone. Thereafter
Sikander Mian exhorted for fleeing them away and started
abusing them. Thereafter Sikander Mian and the people of his
group went away. Thereafter his brother was saved by Pulwa
Turi, Sukhdeo Turi, Jago Turi and Razak Mian, Kali Mian and
Sobi Mian. Then he took his brother Saheb Mian to Police
Station and from there he was advised to get him treated and
issued requisition of treatment in the Government Hospital at
Dumri and where the Doctor of said hospital made stitch on the
head of his brother. Thereafter Doctor advised him to take the
injured to the Police Station and then the informant came to the
Police Station and has given about the occurrence in writing. His
brother was referred from Dumri Hospital to Sadar Hospital,
Giridih and where his brother was treated.
23. During cross-examination, Nirmal Turi, who is nephew of
one Kohwa Turi, claimed that Sikander and his family members
i.e. his wife, Manawar, Anwar, Akbar, Kurban, Mubarak and
Rojan Ansari were there. He denied to have any acquaintance
with one Pulwa Turi and he i.e. P.W-2 is not concerned with
land of said Pulwa Turi. He has no dispute with Original
Appellant no.3-Sikander Mian (Cr. Appeal (SJ) No.790 of
2007). He admitted that his house and house of Pulwa Turi has
got common wall whereas the house of Sikander situates at a
distance of 400 Meter. He admitted that Sikander had thrown
one stone. He admitted in Para-26 of his cross-examination that
he used to live separate from his brother Saheb Mian.
24. Thus, from scrutinizing the evidence of P.W-2 (i.e. the
informant) it is evident that except making the allegation of
stone pelting against Original Appellant no.3-Sikander Mian
(Cr. Appeal (SJ) No.790 of 2007), he had not named any other
appellants for assaulting the informant and his brother and for
throwing stones upon them.
25. Thus, even as per evidence of the informant-P.W-2, it is
evident that no specific overt act has been attributed to the other
appellants i.e. Appellants-Anwar Mian, Akbar Ansari, Manawar
Mian and Mannuna Khatoon @ Mamuna Khatoon [Cr. Appeal
(SJ) No.790 of 2007] and appellants-Mubarak Mian, Kurban
Ansari and Rojan Ansari [Cr. Appeal (SJ) No.856 of 2007].
26. P.W-4 is Saheb Mian, who is the injured and he stated
during his evidence that occurrence took place around 6.00 p.m
in the evening while he was in his house and Original Appellant
no.3-Sikander Mian (Cr. Appeal (SJ) No.790 of 2007) and his
wife were abusing in front of his house then Anwar Ansari and
Manawar Ansari came there. He also alleged that the Original
Appellant no.3-Sikander Mian (Cr. Appeal (SJ) No.790 of 2007)
assaulted him by stone on his head due to which he sustained
head injury whereas Anwar and Manawar assaulted him by
Lathi at his left leg and right leg. Thereafter Mubarak Mian,
Rojan Mina, Akbar and Appellant no.3-Kurban Ansari (Cr.
Appeal (SJ) No.856 of 2007) also came and when his brother
Sabul Mian came to save him then accused persons also
assaulted him due to which he fled away. Thereafter he had gone
to Nimia Ghat Police Station from the place of occurrence and
got the application written through Nirmal Turi at the Police
Station and he was sent for treatment at Dumri Hospital where
he was treated and from there he was sent to Sadar Hospital,
Giridih for treatment and from there he was sent to Ranchi for
his treatment. He has produced one document marked as 'X' for
identification. However, he could not get himself treated at
Ranchi as there was demand of Rs.20,000/- which was not
available with him.
27. During cross-examination, he admitted that the quarrel
started due to land dispute. He is living at a distance of 1 ½ to 2
Kilometer from the house of the accused persons and both the
accused persons and he claimed the land, which is pending for
15-20 years but no civil case has been instituted. There were
several household decision but Punches are not alive. He
claimed that the land is of his ancestors and he has no
relationship with the accused person. However, he admitted that
Sikander i.e. Original Appellant no.3 (Cr. Appeal (SJ) No.790 of
2007) is Samdhi of his brother. He also admitted for not filing
any paper for measurement of the land in Anchal. He also
admitted that there was no talk on the land on the date of
occurrence and at that time the ladies of both families had
quarreled for half an hour and villagers had assembled. He also
admitted that Bax Mian is father of Sikander Mian and Sikander
Mina had instituted a case of arson upon him.
28. Thus, from scrutinizing the evidence of P.W-4, it is
evident that he completely contradicts the evidence of P.W-2.
From the evidence of P.W-2, it is evident that P.W-2 cannot be
an eye witness of occurrence because the dispute was going on
amongst Original Appellant no.3-Sikander Mian (Cr. Appeal
(SJ) No.790 of 2007) and his wife on the one side and Pulwa
Turi, Sukhdeo Turi on the other side and firstly the informant
had tried to pacify them then he was assaulted by stone by
Sikander Mian and his brother Saheb Mian sustained injury of
stone by Sikander Mian. However, P.W-4 stated that he firstly
was trying to pacify Sikander Mian and his wife and he had not
shown the presence of Pulwa Turi, Sukhdeo Turi, Jago Turi and
Razak Mian, Kali Mian and Sobi Mian. Even P.W-4 was
residing at a distance of 1 ½ to 2 Kilometer from the place of
occurrence.
Thus, the evidence of P.W-2 and P.W-4 are contradictory
to each other and hence the evidence of P.W-4 is not reliable.
29. From the evidence of P.W-4-Saheb Mian, it is evident that
the Original Appellant no.3-Sikander Mian (Cr. Appeal (SJ)
No.790 of 2007) had instituted a case upon him for committing
arson. It is further evident that even P.W-2-Informant has not
been examined by any doctor and his injury report has not been
marked as exhibit by the prosecution. Thus, the evidence of
P.W-2 is not reliable.
30. It further transpires from the Injury Report marked as
Exhibit-1 that the injured-Saheb Mian had sustained only one
injury on forehead caused due to alleged stone pelting and no
swelling what to speak of injury was found on the right leg and
left leg of P.W-4-Saheb Mian.
Thus, the allegation against Anwar Mian i.e. Appellant No.1
and Manawar Mian i.e. Appellant No.3 is also not proved.
31. It transpires that there is no allegation against remaining
Appellants-Anwar Mian, Akbar Ansari, Manawar Mian and
Mannuna Khatoon @ Mamuna Khatoon [Cr. Appeal (SJ)
No.790 of 2007] and appellants-Mubarak Mian and Rojan
Ansari [Cr. Appeal (SJ) No.856 of 2007] of stone pelting or any
overt act is not proved from the evidence of P.W-2 and P.W-4
namely Sabul Mian and Saheb Mian.
32. It further transpires that the Sikander Mian i.e. the Original
Appellant No.3 (Cr. Appeal (SJ) No.790/2007) against whom
there is allegation of stone pelting and for causing head injury to
P.W-4-Saheb Mian is concerned, has died and his name has
already been deleted by this Court vide order dated 19.06.2024.
33. It further transpires that one Kurban Ansari-Appellant
No.3 (Cr. Appeal (SJ) No.856/2007) has also died and his name
has also been deleted vide order dated 12.07.2023.
34. In view of the discussions made above, it is evident that
the prosecution has failed to prove the allegation of stone pelting
or causing any overt act against the appellants i.e. Appellants-
Anwar Mian, Akbar Ansari, Manawar Mian and Mannuna
Khatoon @ Mamuna Khatoon [Cr. Appeal (SJ) No.790 of 2007]
and appellants-Mubarak Mian and Rojan Ansari [Cr. Appeal
(SJ) No.856 of 2007].
35. Thus, no offence under Section 337/34 of the I.P.C is
made out against the appellants. Therefore, the conviction of
other appellants is not sustainable in the eye of law under
Section 337/34 of the I.P.C.
36. Under the circumstances, the judgment of conviction and
sentence dated 20.06.2007 passed in S.T. No.319 of 2004 (T.R.
No.119/2005) by Sri Kamlesh Mishra, learned Additional
Sessions Judge, F.T.C-VII, Giridih is set aside and the
appellants i.e. appellants-Anwar Mian, Akbar Ansari, Manawar
Mian and Mannuna Khatoon @ Mamuna Khatoon [Cr. Appeal
(SJ) No.790 of 2007] and appellants-Mubarak Mian and Rojan
Ansari [Cr. Appeal (SJ) No.856 of 2007] are acquitted for the
offence under Section 337/34 of the I.P.C and they are
discharged from the liability of their respective bail bonds.
37. Thus, the Cr. Appeal (SJ) No.790 of 2007 and Cr. Appeal
(SJ) No.856 of 2007 are allowed.
38. Let a copy of this judgment along with Lower Court
Records be sent to the learned Court below at once by the office.
(Sanjay Prasad, J.)
Saket/-
NAFR
