Jharkhand High Court
Md. Naseem @ Alma vs The State Of Jharkhand on 25 November, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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(Against the judgment of conviction and the order of sentence, both dated
05.08.2002, passed by learned 3rd Additional Sessions Judge, Jamshedpur
in Sessions Trial No. 41 of 1997)
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Criminal Appeal (D.B.) No.475 of 2002
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1.Md. Naseem @ Alma, son of Kalimuddin, resident of Purani Basti
Road, Jugsalai, PS Jugsalari (Jamshedpur), District Singhbhum East;
permanent resident of village Mandal Shahi, PS Chakradharpur,
District Singhbhum West.
2. Nepali @ Salim, son of Sukman Lama, resident of Mandal Shahi,
PS Chakradharpur, District Singhbhum West.
3.Munna Manihar @ Nizamuddin Sheikh, son of late Kalimuddin,
resident of Purani Basti Road, PS Jugsalai, District Singhbhum West.
... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
With
Criminal Appeal (D.B.) No.515 of 2002
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Mokhtar Ahmed @ Anis, son of Ahmad Hussain, resident of Purani
Basti Road, PS Jugsalai, District Singhbhum East ... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
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PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellant(s) : Mr. B.M. Tripathi, Sr. Advocate
Mr. A. S. Dayal, Advocate
Ms. Supriya Dayal, Advocate
For the Respondent(s) : Mr. Saket Kumar, APP
.........
JUDGMENT
CAV on : 12.11.2024 Pronounced on : 25/11/2024
Per Ananda Sen, J.: These Criminal Appeals arise out of the judgment of
conviction and the order of sentence, both dated 05.08.2002 in
Sessions Trial No. 41 of 1997 whereby and whereunder learned
3rd Additional Sessions Judge, Jamshedpur convicted the
appellants under Sections 394/34 and 302/34 of the Indian Penal
Code and sentenced them to undergo RI for ten years under
section 394/34 of the Indian Penal Code and RI for life under
Sections 302/34 of the Indian Penal Code. Both the sentences
were ordered to run concurrently.
2. The learned counsels for the appellants submitted that
there is vital contradictions in the narration of PW1, PW2 and
PW3 regarding the manner of occurrence. Without any source of
illumination, in the early hours of winter morning identification
of the appellants by the PW1, PW2 and PW3 is doubtful. The
evidence of the eye witnesses contradicts the medical evidence.
Further, there was no snatching of money from the deceased as
PW1 has stated that he had handed over the entire amount of
Rs. 30,000/- to the police which was kept in the pocket of the
underwear of the deceased. Further non-examination of the
investigating officer is a serious lacuna in the prosecution case as
it had caused serious prejudice to the appellants in their defence.
Thus he prays for acquittal.
3. The learned counsel for the State submitted that all the four
accused persons had common intention to snatch money of
Kalim Gaddi and one of them had fired with a gun upon the
deceased resulting in death. There is direct evidence to the
occurrence and PW1, PW2 and PW3 had seen the entire
occurrence. Further PW1, PW2 and PW3 had fully supported the
prosecution case. On the aforesaid grounds, he prays that these
appeals may be dismissed.
4. The FIR is at the instance of Md. Zamil Gaddi, who is the
cousin brother of the deceased Kalim Gaddi. The prosecution
case in brief is that on 01.10.1996 at about 5:00 AM Kalim Gaddi
left the house of the informant Md. Zamil Gaddi for Calcutta for
purchasing readymade garments, having Rs. 30,000/- in his
pocket and with one bag. The informant also followed the
deceased to feed his cattle and when the informant reached near
the house of Laddu at about 5:15 AM he saw four persons
Nepali, Amla, Munna Manihar and Anis @ Mukhtar caught hold
of the deceased and snatching the bag of Kalim Gaddi. Then he
saw one accused, namely, Munna Mahihar fired gun shot at
Kalim Gaddi and other three accused persons took away the
material kept in the bag. Azam Gaddi and Mustakim Gaddi
came there and chased the accused persons but they fled away
with gunny bag and other bag. Kalim Gaddi died at the spot.
Police then came and recorded fardbeyan of the informant. On the
basis of his fardbeyan, FIR was registered being Jugsalai PS Case
No. 152 of 1996 under sections 302/394/34 of the Indian Penal
Code and section 27 of the Arms Act.
5. After investigation, the Investigating Officer submitted
chargesheet against the appellants for the offence punishable
under Sections 302/394/34 of the Indian Penal and section 27 of
the Arms Act.
6. On the basis of chargesheet and materials available on
record, cognizance was taken and case was committed to the
Court of Sessions where charges were framed under Sections
394/34 and 302/34 of the Indian Penal Code and trial proceeded.
7. To prove the prosecution case, altogether 12 witnesses
were examined by the prosecution, who are:-
i. PW1 :- Md. Zamil Gaddi
ii. PW2 :- Azam Gaddi
iii. PW3 :- Mustakim Gaddi
iv. PW4 :- Prabhudh Kumar Bajpai
v. PW5 :- Ghulam Jelani
vi. PW6:- Aziz Gaddi
vii. PW7:- Shahid Hussain
viii.PW8:- Md. Abbas Ansari
ix. PW9:- Dr. Y. Nath
x. PW10:- Jharia Kujur
xi. PW11:- Sanjeev Kumar
xii. PW12:- Ratan Lal
8. Following documents have been exhibited :
i. Ext.1 - Fardbeyan
ii. Ext.2 - Signature of PW2 on the Fardbeyabn
iii. Ext.2/1 - Signature of Md. Mustkim on the Fardbeyan
iv. Ext.2/2 - Signature of PW4 on the Fardbeyan
v. Ext.2/3 - Signature of PW5 on the seizure list
vi. Ext.2/4 - Signature of O/I Jugsalai PS Jhagsalari Jamshedpur
vii. Ext.3 - Postmortem Report
viii. Ext.4 - Writing of PW9 in paper pasted in the container
ix. Ext.4/1 - Writing of PW9 in the paper in which bullet is sealed.
x. Ext.5 - Endorsement on the Fardbeyan
xi. Ext.6 - Signature and writing of sheets proposed on proposed
para 1 to para 73 of case diary.
9. PW1 Md. Zamil Gaddi is the cousin brother of the
deceased Kalim Gaddi. According to him the occurrence is of
01.10.1996 near the house of Laddu situated near Jugsalai
market. At about 5:00 PM on his way to Jugsalai Market to feed
his cattle when he reached near the house of Laddu he saw four
persons snatching the bag of Kalim Gaddi near the Italian Shoe
Shop. He saw one Munna Manihar fired gun shot at Kalim
Gaddi. On his shouting Azam Gaddi and Mustakim Gaddi came
there and chased the appellants but they fled away with the
gunny bag and other bag. Kalim Gaddi was having Rs. 30,000/-
in his underwear's pocket and he died at the spot. Police then
came and recorded his statement.
PW2 had stated that on 01.10.1996 at about 5:15 AM on his
way to Jugsalai railway crossing near the Italian Shoe Shop he
saw four persons snatching bag of Kalim Gaddi. Zamil shouted
and in the meantime, Munna Manihar fired gun shot on the
deceased. He and his brother chased but the accused persons
fled. When he returned he saw Kalim Gaddi had already died.
PW3 had stated that at about 5:00 to 5:50 he with Azam
were going towards railway crossing and when he reached the
house of Laddu he saw four persons snatching property of one
person. He rushed towards them and saw one culprit had fired
on Kalim.
PW4 is the seizure witness to one empty cartridge and one
bag. His signature is marked as Ext. 2/2.
PW5 has also signed the seizure list of one cartridge and
one bag. His signature is marked as Ext. 2/3.
PW6 had stated that on 01.10.1996 at about 5:00 AM he saw
one person running and other 4-5 persons were chasing him. He
saw one dead body near the place of occurrence.
PW7 had stated that at about 8:00 AM he was going to
river for taking bath. On hearing hulla he saw some persons
caught hold of Anis and taking him to police station.
PW8 had stated that on 01.10.1996 at about 5:30 AM when
he was returning from his Tailor shop he saw one person was
running and others were chasing him. On inquiry he learnt that
Kalim has been murdered.
PW9 is the doctor who conducted the postmortem of the
dead body of Kalim Gaddi and found the following injuries:
(A) Fire Arm Injury - (a) wound of entrance - 3.2 cm x 2 cm x
chest cavity situated over back of right chest 20 cm below the
shoulder line and 19 cm right to the mid line of the body. Collar
of abrasion round the wound of entrance.
Course - The bullet entered into the chest cavity in order passes
obliquely anteriorly - pose surface of right lung, left border
right lung right border of pericardium and heart, sternum. The
5th rib and adjoining sternum fractured and the bullet lodged
under skin at the level of 5th rib from where it was recovered.
Chest cavity full of blood and blood clot. The organs in the
course of bullet lacerated and contused.
(B) Clothing - There is a hole on half cream color ganji at the
point - 23 cm below the shoulder stitched and 8 cm left to side
stitch blood stained.
The opinion of the doctor is that all the injuries were ante
mortem, caused by fire arm and cause of death is due to
hemorrhage and shock. The postmortem report was marked as
Exhibit-3.
PW10 stated that on 01.10.1996 at 7:00 AM he recorded the
fardbeyan of Md. Zamil Gaddi. The fardbeyan is marked as Ext.1.
PW11 had stated that he only participated in search but not
arrested anyone.
PW12 had proved the signature of the officer in-charge on
formal FIR which was marked as Ext. 2/1. He has also proved
relevant portion of the case diary which was marked as Ext.6.
10. From the evidence of the doctor we find that he found fire
arm injury on the body of the deceased. There was wound of
entrance. The bullet was lodged under the skin. Thus the death
was caused by gunshot injury has been proved by the
prosecution which is evident from the statement of the doctor
PW9 and the postmortem report which is Exhibit 3. PW1, PW2
and PW3 also had clearly stated that the deceased was shot at,
which resulted in his death. Thus it is proved that the deceased
died a homicidal death as a result of gunshot injury.
11. So far as involvement of the appellants is concerned, PW1
and PW2 who are the eye witnesses have stated that they have
seen 4 persons trying to snatch the bag of the deceased. There
was a scuffle when Munna Manihar fired with fire arm upon the
deceased. The accused persons were chased but they fled. The
fact that the deceased was confronted by 4 accused and they
were trying to snatch his bag has also been supported by PW3.
PW4 and PW5 are the seizure witnesses of the empty cartridge
and bag which the deceased was carrying. From the evidence of
PW1, PW2 and PW3 it is clear that all these appellants with an
intention to rob the deceased, attempted to rob him. There is
evidence that these persons not only wrongfully restrained the
deceased but ultimately one of them caused death. As per section
390 of the Indian Penal Code theft is robbery when in
committing such theft someone attempt to carry away the
property obtained by theft and the offender for the purpose to
achieve that voluntarily causes or attempts to cause any person
death or hurt or wrongfully restrains the person from whom the
theft is being committed. Thus from the evidence it is a case of
robbery.
12. From the evidence it is true that there was an attempt to
commit robbery however they could not rob him because of the
intervention of the witnesses. The appellants fled from the place
of occurrence. They took his bag but the money was found in the
pocket of the underwear of the deceased which the appellant
couldn't take. Thus definitely an attempt was made to commit
robbery. All the appellants having intention to commit robbery
and their act of restraining the deceased and trying to snatch bag
from him conjointly suggests that they had a common intention
to commit robbery of the deceased. Section 394 of the Indian
Penal Code provides for punishment of persons who voluntarily
causes hurt in committing robbery. Section 394 of the Indian
Penal Code reads as follows:
"394. Voluntarily causing hurt in committing robbery.
If any person, in committing or in attempting to commit
robbery, voluntarily causes hurt, such person, and any
other person jointly concerned in committing or attempting
to commit such robbery, shall be punished with
imprisonment for life, or with rigorous imprisonment for a
term which may extend to ten years, and shall also be liable
to fine."
13. The aforesaid section not only provides punishment for
the person who had committed the hurt but also the other
persons who are jointly connected in committing or attempting
to commit such robbery. In this case from the evidence we find
that all the appellants were jointly concerned in an attempt to
commit robbery of the deceased. Thus the appellants Md.
Naseem, Nepali and Mokhtar Ahmed cannot claim any
immunity taking a ground that they were not involved in
shooting the deceased. Since they were jointly concerned in the
attempt to commit robbery, same will attract conviction under
section 394 of the Indian Penal Code. The Trial Court thus had
correctly convicted all the appellants under section 394/34 of the
Indian Penal Code and sentenced them to imprisonment for 10
years even though these three appellants have not actually fired
at the deceased.
14. So far as section 302 of the Indian Penal Code is concerned
we find that it is the consistent evidence that Munna Manihar
had shot dead the deceased. There is nothing on record from the
evidence to suggest that there was any common intention on the
part of Md. Naseem, Nepali and Mokhtar Ahmed along with
Munna Manihar to commit murder of the deceased. Thus
conviction of Md. Naseem, Nepali and Mokhtar Ahmed under
section 302 of the Indian Penal Code read with section 34 of the
Indian Penal Code cannot be sustained.
They are thus acquitted of the charge under section 302 of
the Indian Penal Code.
So far as Munna Manihar is concerned since there is a
direct evidence as per the witnesses of commission of murder of
the deceased, his conviction under section 302 of the Indian
Penal Code is sustained.
15. Thus all the appellants are rightly convicted for
committing offence under section 394/34 of the Indian Penal
Code and sentenced to RI for 10 years. Whereas additionally
Munna Manihar is convicted for committing offence under
section 302 of the Indian Penal Code and sentenced to RI for life.
16. Accordingly, both these appeals stand dismissed.
17. Since the appellants are on bail. Their bail is cancelled and
they are directed to surrender before the Court concerned
forthwith and serve the rest of the sentence, if they have not yet
served.
18. Let a copy of the judgment along with the Trial Court
Records be sent back to the Court concerned forthwith.
(ANANDA SEN, J.)
GAUTAM KUMAR CHOUDHARY, J. - I agree.
(GAUTAM KUMAR CHOUDHARY, J.)
High Court of Jharkhand, Ranchi
Dated : 25th November 2024
Tanuj/
N .A.F.R.
