Jharkhand High Court
Afsar Sheikh Son Of Late Haji Sheikh ... vs The State Of Jharkhand on 21 November, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.A(SJ) No.812 of 2006
1. Afsar Sheikh Son of Late Haji Sheikh Mohamad
2. Sahjahan Sheikh Son of Khoshu Sheikh
3. Muzaffar Sheikh Son of Khoshu Sheikh
4. Harroj Sheikh Son of Sikimuddin
5. Sakimuddin Sheikh Son of Late Hussain Sheikh
6. Samsuddin Sheikh Son of Haji Sheikh Mohamad
7. Khosu Sheikh Son of Haji Sheikh Mohammad
8. Asgar Ali @ Gamu Sheikh Son of Haji Sheikh Mohamad
All of village Chorbapur, P.S. Kaliya Chak, District Maldah,
West Bengal. ... Appellants
Versus
The State of Jharkhand
... Respondent
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For the Appellants : Mr. Pradyot Chatterjee, Amicus Curiae
For the State : Ms. Nehala Sharmin, Spl. P.P.
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PRESENT
Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
Dated- 21.11.2024
By Court:- Learned amicus for the appellants submits that
appellants No.1 to 4 are alive and 5 to 8 is reported to have
been died.
2. The appeal so far relates to appellants No.5 to 8 is,
therefore, stands abated.
3. Heard Mr. Pradyot Chatterjee, learned amicus
Cr.A(SJ) No.812 of 2006 Page | 1
appearing for the appellants as well as Mrs. Nehala Sharmin,
learned Spl. P.P. appearing for the State.
4. This instant appeal is directed against the judgment and
order of conviction and sentence dated 16.05.2006 passed by
learned Additional Sessions Judge No.I, Rajmahal in Sessions
Case No.185 of 1986 (S.T. Case No.147 of 2002) whereby and
whereunder all the appellants were sentenced to undergo R.I.
for three years for the offence punishable under Section 148 of
the Indian Penal Code and R.I. for three years for the offence
punishable under Section 324 of the I.P.C. Both the sentences
were directed to be run concurrently.
5. The factual matrix as depicted in the F.I.R. lodged by
one Naimuddin Sheikh (informant) is that on 06.03.1984, he
was attacked by a group of accused persons, including
Sheikh Mohammad, who died during trial and his name was
deleted vide order dated 19.12.2002, while returning to his
village after fishing and having fishing net with them. It is
further alleged that the assailants armed with weapons such
as hasue, sword and farsa assaulted the informant as a result
of which he became unconscious and then he was taken to
the hospital for treatment, thereafter, the incident was
reported to the police.
On the basis of above fardbeyan, the case was instituted
as Rajmahal P.S. Case No.96 of 1984 for the offences under
Sections 147, 148, 149, 307 and 326 of the Indian Penal Code.
6. After completion of the investigation, charge-sheet was
submitted against the appellants for the aforesaid offences
and accordingly, cognizance was taken and subsequently, the
case was committed to the Court of Sessions where Sessions
Case No.185 of 1986 (S.T. Case No.147 of 2002) was
registered. Charges were framed against the accused
appellants under Sections 148, 307/149 and 326/149 of the
I.P.C. which was read over and explained to them for which
they denied and claimed to be tried.
7. In the course of trial, altogether four witnesses were
examined by the prosecution and following documentary
evidence were also adduced:
Exhibit 1 : Fardbeyan
Exhibit 2 : F.I.R.
8. After conclusion of trial, the appellant was held guilty
for the aforesaid offences and sentenced as stated above
which has been assailed in this appeal.
9. Learned amicus for the appellants No.1 to 4 submits
that the appellants are thoroughly innocent and have been
falsely implicated in this case only on the basis of suspicion.
No specific overt act has been attributed against the
appellants rather causing injury by sword has been alleged
against appellant Khoshu Sheikh (since deceased) and there
are general and omnibus allegation against other appellants.
It is alleged that when the informant was returning after
fishing from pond along with net and fishes, meanwhile,
present appellants met and started assaulting him by hasua,
lathi, sword and farsa etc. The injured informant Naimuddin
Sheikh was taken to hospital for treatment and the F.I.R. was
also lodged for the offences under Sections 147, 148, 149, 307
and 326 of the I.P.C. The learned trial court after conclusion
of trial has held the appellants guilty for the offences under
Sections 148 and 324 of the I.P.C. It is further submitted that
the prosecution has failed to prove the injury report of the
deceased by examining the concerned doctor and the
Investigating Officer of the case has also not been examined
in this case. There was old dispute between the parties and a
complaint case was also lodged by the appellants against the
informant of this case prior to this occurrence. The F.I.R. was
also lodged after 34 days delay without any reasonable
explanation. In the alternative, it is submitted that the learned
trial court has failed to record any special reasons for not
extending the benefit under Section 360 of the Cr.P.C. or
Section 4 of the Probation of Offenders Act, 1958. The simple
reason assigned is that the offence is very serious in nature.
The sole injured is the informant (P.W.-3) who has stated
overt act only of Khoshu Sheikh and none heirs/else rather
there are general and omnibus allegation against the other co-
accused persons. Hence, impugned judgment and order is
not sustainable and is fit to be set aside by allowing this
appeal.
10. On the other hand, learned Addl. P.P. appearing for the
State has opposed the contentions raised on behalf of the
appellant and submitted that the informant and other eye
witnesses had categorically proved the prosecution case
beyond doubt. Mere non-examination of Investigating Officer
and Doctor is not sufficient to discard the prosecution case
and disbelieve the evidence of ocular witnesses. Therefore,
this appeal has no merit and is fit to be dismissed.
11. I have gone through the trial court record along with
impugned judgment and order in the light of the arguments
placed on behalf of both side.
It appears that there was old dispute between the
parties and there was case and counter case. So far overt act
of present appellants is concerned, it is not whispered in the
evidence at all as to what was the common object of the
appellants, while forming an unlawful assembly and no
specific overt act has been attributed against the appellants.
They deserve benefit of doubt.
12. In view of the aforesaid discussions and reasons, I find
merits in this appeal which is hereby allowed and impugned
judgment and order of conviction and sentence of appellant is
set aside. Appellant is on provisional bail. He is discharged
from liability of bail bond and sureties are also discharged.
13. I appreciate the able assistance rendered by Mr. Pradyot
Chatterjee, the learned Amicus and Mrs. Nehala Sharmin, the
learned S.P.P.
14. The Secretary, Jharkhand High Court Legal Services
Committee shall reimburse the learned Amicus on
submission of bills, as per Notification dated 23.11.2017.
15. Let a copy of this judgment along with Trial Court
record be sent back to the concerned Trial Court for
information and needful.
16. Pending I.A., if any, stands disposed of.
(Pradeep Kumar Srivastava, J.)
Sachin
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