Jharkhand High Court
Hanif Ali vs The State Of Jharkhand on 23 September, 2024
Author: S.N. Pathak
Bench: S.N.Pathak, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No335 of 2002
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(Against the judgment of conviction and order of sentence dated 28.06.2002
passed in Sessions Trial No. 220 of 1990 arising out of Dhalbhumgarh P.S. Case
No. 27 of 1984 by the Court of 1st Additional Sessions Judge, East Singhbhum at
Jamshedpur)
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Hanif Ali, son of Late Lukman Ali, resident of village-Dalki, Police Station-
Dhalbhumgarh, District- East Singhbhum --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
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CORAM : HON'BLE DR. JUSTICE S.N.PATHAK
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Sankalp Goswami, Advocate
Mr. Mohit Bhalla, Advocate
For the State : Mr. Pankaj Kumar Mishra, A.P.P.
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Dated 23rd September 2024
JUDGMENT
Challenge in the appeal:
The instant appeal is directed against the judgment of conviction
and order of sentence dated 28.06.2002 passed in Sessions Trial No. 220
of 1990 arising out of Dhalbhumgarh P.S. Case No. 27 of 1984 by the
Court of 1st Additional Sessions Judge, East Singhbhum at Jamshedpur
whereby and whereunder the appellant along with other two co-accused
has been convicted for the offence punishable under Sections 302/149
and 307 of the IPC and sentenced to undergo imprisonment for life under
Section 302/149 of the IPC and R.I. for 10 years under section 307 of the
IPC. Both the sentences were directed to run concurrently.
2. At the outset, it has been pointed out by learned A.P.P. appearing
on behalf of the State that initially this appeal was preferred by 3
appellants namely i.e., the present appellant no.1 Hanif Ali, appellant
no.2 Md. Ali and appellant no.3 Mohar Ali out of whom appellant no.2
Md. Ali and appellant no.3 Mohar Ali have died and their death
certificate furnished by Mukhia of the village has been annexed to the
counter affidavit filed by the State.
3. In view of the aforesaid fact, the appeal stands abated as respect to
appellant no.2 Md. Ali and appellant no. 3 Mohar Ali. Now this appeal
survives only with respect to appellant no.1 Hanif Ali.
Prosecution Story:
4. The prosecution case arose in the wake of the fardbeyan given by
one Sk. Siraj Ali son of Late Hamid Ali, resident of village Dalki, P.S.
Dhalbhumgarh, District East Singhbhum on 18.06.1984 Monday at 8.15
hours morning accompanied with his brother Sk. Rahman and villagers
Sk. Wahid Ali, Imtiaz Ali carrying his deceased brother Hakim Ali
before the A.S.I. of Dhalbhumgarh Police Station alleging therein that
since 14 to 15 years ago his father had purchased 5 kathas of land from
his co-villager Hyder Ali situated in mouza Dalki, which has been
cultivated by them. On 18.06.1984 in the morning at about 6 A.M his
villagers Sk. Mohammad Ali, Sk.Mohar Ali, Sk. Lokman all sons of
Javed Ali, Sk. Hanif Ali son of Lokman Sk Raisuddin @ Pela son of
Mohammad Ali, Masoom Ali son of Hamid Ali and Ismail armed with
lathi, Bhala, Tangi, Talwar, bow and arrows were getting the land
ploughed, then he along with his brother Sk. Rahman, Sk.Hakim went to
stop them from ploughing of the filed. He further alleged that Sk.
Mohammad Ali asked the accused persons to kill them, upon which
Mohar Ali gave a sword blow on his head due to which he fell down and
accused Hanif Ali (appellant) gave a Bhala (Ballam) blow on the back
and also his brother Rahman was assaulted by Ballam (Bhala) on his
abdomen by accused Sk. Hanif (appellant). Accused Lokman assaulted
him with lathi. It is further alleged that accused Mohammad Ali gave a
sword blow on the head of his brother Hakim due to which he fell on the
ground. Thereafter Sk. Raisuddin @ Pela gave a Ballam (Bhala) blow on
the chest of Hakim due to which he died on the spot. Accused Masoom
Ali and Ismail assaulted him and his brother by lathi. As soon as Hakim
died all the accused persons fled away. In the meantime, villagers Sk.
Wahid, Imtiaz Ali, Maqbool, Taimur and others came on the P.O and
witnessed the occurrence and brought all of them to the Police Station on
bullock cart.
2 Cr. Appeal (DB) No. 335 of 2002
Charge and decision of the Trial Court:
5. On the basis of the statement of the informant, Dhalbhumgarh P.S.
Case No.27/84 dated 18.06.84 was instituted U/s 147 / 148 / 149 / 302 /
307 / 324 of the I.P.C. Police after investigation submitted charge sheet
against the five accused Raisuddin @ Pela, Mohammad Ali, Mohar Ali,
Sk. Lokman and Sk. Hanif. Accused Masoom Ali and Ismail were not
sent up for trial. The cognizance was taken on 30.11.1984. Case of all
the five accused persons was committed to the Court of Sessions on
14.05.1990. During the trial accused Lokman died and proceeding
against him was dropped vide order dated 27.02.96. Charge was framed
against accused Raisuddin @ Pela, Md. Ali, Mohar Ali. Sk. Lokman and
Sk Hanif on 20.07.91 U/Ss 149/302 I.P.C and 307/34 of I.P.C. The trial
of one accused i.e., Raisuddin @ Pela against whom earlier charge was
framed, his trial was conducted by Juvenile Court.
6. The defence of the accused persons are total denial of the charge and
their false implication due to previous enmity.
7. The learned Trial Court after conducting full-fledged trial passed
the impugned judgment of conviction and order of sentence as aforesaid,
which is under challenge.
8. Heard learned counsel for the appellant and the learned A.P.P. for
the State.
Arguments advanced on behalf of the appellant
9. It is submitted on behalf of the appellant that the impugned
judgment of conviction and order of sentence is bad in law as well as on
facts, in view of the fact that the learned Trial Court has failed to take
into consideration the role of this appellant in the commission of the
offence in absence of any common object and to convict the appellant
with the aid of Section 149 of the IPC under Section 302 of the IPC.
Further, the learned Trial Court has also committed gross error in
appreciating the role of this appellant in the alleged assault said to have
been inflicted by this appellant upon the injured persons i.e., P.W.2 Sk.
Rahman Ali and P.W.4 Sk. Siraj Ali. Further, the learned Trial Court has
failed to take into consideration that non-examination of the
Investigating Officer has caused prejudice to the case of the defence.
3 Cr. Appeal (DB) No. 335 of 2002
Further, it has also been submitted on behalf of the appellant that the
Doctor, who has conducted the post mortem upon the deceased has not
been examined and as such the post mortem report has not been proved
and therefore the injury sustained by the deceased Hakim could not be
explained, which has caused prejudice to the case of the defence.
10. It has also been submitted on behalf of the appellant that D.W.1
Md. Imtiyaz, who has been examined on behalf of the appellant stated
that he was present when the deceased took his last breath and he had
taken the deceased and injured P.W.2 Sk. Rahman and P.W.4 Sk. Siraj to
the police station. He also stated that P.W.2 and P.W.4 could not identify
the assailants. It has further been submitted that the other witnesses, who
have been examined on behalf of the prosecution are highly interested
witnesses and they cannot be relied upon. P.W.2 Sk. Rahman, who is
said to be injured eye witness has categorically stated that appellant
Hanif had lathi in his hand by which Siraj was assaulted once and he
categorically stated that it was co-convict Sk. Raisuddin and Md. Ali
who had assaulted the deceased. He did not take the name of this
appellant Hanif that he had ever assaulted the deceased. Further, it has
also been pointed out that P.W.4 SK. Siraj Ali who is said to be another
injured eye witness, did not state that appellant had given any blow on
the deceased and it was Md. Ali and Risauddin who had assaulted the
deceased. Thus, from the statements of P.W.2 and P.W.4, it is apparent
that appellant was in no way engaged in inflicting injury upon the
deceased as evident from post mortem report also, which has been
marked as Ext. 4.
11. Further it has also been pointed out that Section 149 of the IPC
would not get attracted in absence of any role of this appellant in order
to infer the common object to kill the deceased and thus the learned Trial
Court has failed to appreciate the pre-condition of invoking the provision
of section 149 of the IPC in order to hold guilt of this appellant under
Section 302 of the IPC with the aid of Section 149 IPC and thus it is bad
in law. It has further been pointed out that no offence under Section 307
of the IPC is substantiated against the appellant because of the fact that
the only one blow has been given upon the injured P.W.2 by the
4 Cr. Appeal (DB) No. 335 of 2002
appellant and there was no intervening circumstances by which he was
prevented to cause more injury to the injured and as such the intention
and knowledge are not inferred against this appellant for inflicting injury
either upon P.W.2 or P.W.4 by 'ballam'(small Bhala- a sharp and pointed
weapon) to convict this appellant under Section 307 of the IPC which is
also bad in law and at most it is a case of Section 324 of the IPC and
thus the learned Trial Court has committed gross error of law in passing
the impugned judgment of conviction and order of sentence.
12. In support of their arguments, learned defence counsel has relied
upon rulings of the Hon'ble Supreme Court on the point of invoking
Section 149 of the IPC as enunciated by the Apex Court in the case of
Joseph Vrs. State, represented by Inspector of Police and others
reported in (2018) 12 SCC 283 and in the case of Parsuram Pandey and
others Vrs. State of Bihar reported in (2004) 13 SCC 189.
Arguments advanced on behalf of the State.
13. On the other hand, learned A.P.P. appearing on behalf of the State
has opposed the contentions raised on behalf of the appellant and
submitted that learned Trial Court has rightly passed the impugned
judgment of conviction and order of sentence because this appellant
along with co-convict armed with deadly weapons had attacked upon the
deceased and injured persons and by which the deceased sustained
injuries and the injured persons had also been badly assaulted and he has
relied upon the deposition of the witnesses examined on behalf of the
prosecution including P.W.2, P.W.3, P.W.4 and P.W.6 and the post
mortem report and the injury reports which has been marked as Ext.3,
Ext.3/1 and Ext.4 and therefore, there is no legal point to interfere in the
impugned judgment of conviction and order of sentence and the instant
appeal is fit to be dismissed.
Appraisal & Findings
14. Having heard the parties, perused the record of the case including
the trial court records.
15. The prosecution in support of its case adduced altogether six
witnesses:
1. P.W.1 Samsuddin Ali Mallick,
5 Cr. Appeal (DB) No. 335 of 2002
2. P.W.2 Sk. Rahman Ali,
3. P.W.3 Sk. Wahid Ali,
4. P.W.4 Sk. Siraj Ali,
5. P.W.5 Subhas Ram
6. P.W.6 Dr. Awadhesh Prasad.
Apart from oral evidences, prosecution has also exhibited certain
documents i.e.
1. Ext.1 formal F.I.R. -cum-fardbayan
2. Ext.2 carbon copy of Inquest Report
3. Ext.3 -the injury report of Sk. Rahman
4. Ext.3/1 injury report of Sk. Siraj Ali
5. Ext.4 is Post Mortem Report.
16. The defence has also examined D.W.1 Md.Imtiyaz.
17. At the outset, the deposition of Dr. Awadhesh Prasad (P.W.6),
who had medically examined the injured persons namely Sk. Rahman -
P.W.2 and Sk. Siraj Ali - P.W.4 are taken into consideration. He has
stated that on 18.06.1984 he had examined Sk. Rahman Ali- P.W.2 which
is as follows:
I. One sharp cutting injury 1 ½"x 3"deep over the left side of
abdomen with the protruded intraabdominal mass.
II. One sharp cut injury half inch long over the mesentery due to
injury no.1
III. One bruise swelling 3 ½ "x 2"over right elbow joint.
He has further opined that the injuries Nos. 1 and 2 are grievous
and caused by sharp pointed weapon. Injury no. 3 is simple and caused
by hard substance. He has proved the injury report marked as Ext. 3
The doctor (P.W.6) has also examined injured P.W.4 Sk. Siraj Ali
and found the following injuries upon P.W.-4:
I. One sharp cut injury 1"x 1"deep over right side of the back
below scapula.
II. One lacerated injury 2 ½"x 1 ½ x ¼"deep over darsal
surface of hand including fingers.
He has opined that both injuries were simple in nature. Injury no.1
was caused by sharp pointed weapon. Injury no. 2 caused by hard blunt
substance. Age of injury within six hours. This injury report bears the
signature of the doctor marked as Ext. 3/1.
6 Cr. Appeal (DB) No. 335 of 2002
Additionally, this witness has also proved the post mortem report
of Sk. Hakim Ali conducted by Dr. B.N. Prasad, who has not been
examined in this case. The post mortem report is marked as Ext. 4.
18. From perusal of Ext. 3 and 3/1, it is found that out of three
injuries inflicted upon Sk. Rahman Ali (P.W.2), injury no.1 and 2 were
grievous in nature caused by sharp pointed weapon and injury no.3 was
simple in nature caused by hard and blunt substance whereas both
injuries inflicted upon P.W.4 Sk. Siraj Ali were simple in nature and
Injury no.1 was caused by sharp pointed weapon whereas Injury no. 2
caused by hard blunt substance. Thus, from the deposition of Dr.
Awdhesh Prasad it is found that both the surviving injured witnesses
P.W.2 and P.W.4 have sustained injuries by sharp pointed weapon and
hard and blunt substance both. Since the doctor who had conducted the
post mortem examination namely Dr. B. N. Prasad has not been
examined, therefore the accused persons have been debarred from their
valuable right of drawing the attention of the doctor about the cause of
death but from perusal of the post mortem report it is found that death
has been caused because of shock and hemorrhage caused especially due
to injuries inflicted upon the dead body by sharp pointed weapon. Thus,
it is found that it was a homicidal death and both injured persons have
been injured by sharp pointed weapon as well as by hard and blunt
substance.
19. Now this Court proceeds to take into consideration the depositions
of the rest of the prosecution witnesses who have been examined on
behalf of the prosecution to determine the involvement of the appellant
in the commission of the charged offences.
P.W.1 Samsuddin Ali Mallick is the witness of inquest report.
P.W.2 Sk. Rahman Ali is the injured witness who has
categorically stated that this appellant Hanif had given a 'ballam' (small
Bhala- sharp pointed weapon) blow on his left side of the abdomen and
he did not utter a single word about any kind of assault given by this
appellant upon the deceased Sk. Hakim, who was attacked by co-
accused Lukman, Md. Ali and Sk. Raisuddin. Further it is stated that
P.W.4 Siraj Ali was attacked by Md. Raisuddin and co-convict Md. Ali
7 Cr. Appeal (DB) No. 335 of 2002
and he was also not assaulted by this appellant and this appellant is said
to have assaulted only this witness P.W.2 on the left side of the abdomen
by the sharp pointed weapon 'Ballam'.
P.W.3 Sk. Wahid Ali was the neighbour. He also did not say
about this appellant Hanif about any kind of assault on the deceased and
this witness has stated that appellant Hanif assaulted with lathi on the
left of Md. Siraj Ali -P.W.4 and the deceased was assaulted by Mohar Ali
and Sk. Raisuddin and thus this witness also did not state anything about
this appellant for causing injury either to the deceased or to another
injured persons namely Sk. Rahman Ali (P.W.2) by lathi and thus there is
contradiction between the statement of P.W.2 and P.W.3 with respect to
the means of assault caused by the appellant to the injured P.W.2 because
P.W.2 has stated that he was assaulted on the left side of his abdomen by
a sharp pointed weapon 'Ballam' and P.W.3 stated that appellant has
assaulted P.W.4 by a lathi.
P.W.4 Sk. Siraj Ali is another injured witness who had stated in
his deposition before the Court that accused persons came with deadly
weapons and the appellant Hanif had given a 'ballam' (small Bhala-
sharp pointed weapon) blow in his back and also gave 'ballam' blow on
his brother Sk. Rahman Ali who is P.W.2 and this witness also did not
state about any kind of assault inflicted upon the deceased Hakim by this
appellant. He said that Hakim Ali (deceased) had been assaulted by
Mohar Ali by Talwar on his head and by Sk. Raisuddin who gave
'ballam' blow on the chest of Hakim and thus this witness did not utter a
single word about the appellant for assaulting the deceased and only this
witness sustained injury by this appellant by a 'ballam' which is simple
in nature.
P.W.5 Subhas Ram is a formal witness, who has proved the
formal F.I.R marked as Ext. 1 and the inquest report marked as Ext. 2.
20. Having appreciated the testimonies of the witnesses examined on
behalf of the prosecution in the forgoing paragraphs, it is well founded
that this appellant along with co-accused persons involved in a quarrel
due to landed property dispute with the informant people in which two
persons were injured and one was killed. It is found that this appellant
8 Cr. Appeal (DB) No. 335 of 2002
was also amongst the accused persons but he did not inflict injury upon
the deceased Md. Hakim Ali, as stated categorically by P.W.2 (injured
eye witness Sk. Rahman Ali) and P.W.4 (Sk. Siraj Ali another injured eye
witness). From the aforesaid facts, it is inferred that this appellant had
neither any intention or knowledge to kill the deceased because he did
not inflict injury on the deceased and further, he did not give any
repeated blow upon the injured persons either to P.W.2 or P.W.4. There is
no evidence about the common object in causing death of the deceased
(Section 302 of IPC) or causing attempt to murder of the injured persons
(Section 307 of IPC).
On the point of invoking Section 149 of the IPC in such cases,
Hon'ble Supreme Court has laid down principles for invoking section
149 IPC in order to fasten vicarious liabilities as against the appellant in
the present case. The observation of the Hon'ble Supreme Court in
Naresh v. State of Haryana, (2023) 10 SCC 134 is quoted as under:
26. To convict a person under Section 149IPC the prosecution has to establish with
the help of evidence that firstly, appellants shared a common object and were part
of unlawful assembly and secondly, it had to prove that they were aware of the
offences likely to be committed to achieve the said common object. Both these
ingredients are conspicuously absent and there is no evidence to connect the
petitioners with the deceased or the co-accused. Undisputedly, no overt act has been
attributed to the appellants, and in unequivocal terms PW 9 admits in his cross-
examination that none of the accused except Pawan had caused injury to the
deceased and there was only a single shot fired from the pistol.
21. Learned defence counsel has rightly relied upon the rulings of the
Hon'ble Supreme Court in the case of Joseph Vrs. State, represented by
Inspector of Police and others reported in (2018) 12 SCC 283 in which
observation is made as under
17. As noted earlier, first part of Section 149 IPC states about the commission of an
offence in prosecution of the common object of the assembly whereas the second
part takes within its fold knowledge of likelihood of the commission of that offence
in prosecution of the common object. In the facts and circumstances of the case, we
are of the view that the prosecution has not proved the existence of the common
object amongst the accused and that all of them acted in furtherance of the
common object to invoke the first part of Section 149 IPC.
18. Let us consider whether the act of the accused falls under the second part of
Section 149 IPC. As members of the unlawful assembly, whether the accused knew
that the offence of murder is likely to be committed. It is a matter of evidence that
Sahayam's house is situated next to the house of Jesu, for whose funeral, the two
factions have assembled. Accused 4 to 10 may not have had the knowledge that Jesu
Adimai (A-1), Selvaraj (A-2) and Sahayam (A-3) were armed with bombs and that the
9 Cr. Appeal (DB) No. 335 of 2002
murder of Kennedy was likely to be committed. On the exhortation of Joseph (A-11),
the accused seem to have individually reacted. There is no definite finding of the
High Court [Jesu Adimai v. State, 2011 SCC OnLine Mad 207] that the common object
of the assembly was to commit the murder or that the accused persons had
knowledge that the offence of murder was likely to be committed and hence, the
conviction of Accused 4 to 10 under Section 302 IPC with the aid of Section 149 IPC
cannot be sustained.
Further in Parsuram Pandey v. State of Bihar, (2004) 13 SCC 189 the
Hon'ble Supreme Court has further observed: -
12. By virtue of Section 149 IPC every member of an unlawful assembly at the
time of the commission of the offence is guilty of an offence committed by any
member of the unlawful assembly. The section creates constructive or vicarious
liability of the members of the unlawful assembly for unlawful acts committed
pursuant to the common object by any other member of that assembly. The basis
of constructive guilt under Section 149 is mere membership of an unlawful
assembly. In a case under Section 149 the accused if is a member of the unlawful
assembly, the common object of which is to commit a certain crime and if that
crime is committed by one or more members of that assembly every person who
happened to be a member of that assembly would be liable for that criminal act
by virtue of his being a member of it, irrespective of the fact whether he actually
committed the act or not. To attract Section 149 IPC the prosecution must prove
that the commission of the offence was by any member of an unlawful assembly
and such offence must have been committed in prosecution of the common
object of the assembly or must be such that the members of the assembly knew
that it was likely to be committed. Unless these three elements are satisfied by the
prosecution the accused cannot be convicted with the aid of Section 149 IPC.
22. In view of the aforesaid proposition of law with respect to
fastening the guilt of the accused with the aid of Section 149 of the IPC ,
in the present case it is found that there is lack of common object
amongst the accused persons, particularly this appellant who have had an
opportunity to inflict injury upon the deceased and also upon the injured
persons repeatedly and therefore, the learned Trial Court has committed
an error in holding the guilt of this appellant with the aid of Section 149
of the IPC under Section 302 of the IPC for killing the deceased Md.
Hakim inasmuch as all the witnesses have consistently deposed that this
appellant did not inflict any injury upon the deceased. Thus, the
impugned judgment of conviction and order of sentence passed by the
learned Trial Court with respect to this appellant for convicting under
Section 302 read with Section 149 of the IPC is bad in law and fit to be
set aside. Accordingly, the conviction of the appellant under Section 302
of the IPC read with Section 149 of the IPC is set aside.
10 Cr. Appeal (DB) No. 335 of 2002
23. Further, in the light of contradictions between the statements of
P.W.2 and P.W.3 with respect to the means of assault caused by the
appellant to the injured P.W.2 by 'Lathi' or 'Ballam', it is also found
from the aforesaid analysis of deposition of witnesses in the foregoing
paragraphs that this appellant has inflicted single injury upon the injured
P.W.2- Sk. Rahman Ali and P.W.4 Sk. Siraj Ali by a 'ballam' and 'lathi'.
From perusal of the injury reports of P.W.2 and P.W.4 marked as Ext. 3
and 3/1, it is manifest that injuries are found by sharp pointed weapon
and hard and blunt substances both but in absence of any repeated blow
and also in absence of the intervening circumstances, it is found that the
conviction of the appellant under Section 307 of the IPC for inflicting
injuries upon P.W.2 and P.W.4 for having attempted to commit murder is
also bad in law in view of the principle for attempt to murder in order to
fasten the guilt of attempt to murder as enunciated by the Hon'ble
Supreme Court in the case of Parsuram Pandey and others Vrs. State of
Bihar reported in (2004) 13 SCC 189 where under the circumstances of
the case the Hon'ble Supreme Court has observed as under: -
15. To constitute an offence under Section 307 two ingredients of the offence must
be present:
(a) an intention of or knowledge relating to commission of murder; and
(b) the doing of an act towards it.
For the purpose of Section 307 what is material is the intention or the knowledge
and not the consequence of the actual act done for the purpose of carrying out the
intention. The section clearly contemplates an act which is done with intention of
causing death but which fails to bring about the intended consequence on account
of intervening circumstances. The intention or knowledge of the accused must be
such as is necessary to constitute murder. In the absence of intention or knowledge
which is the necessary ingredient of Section 307, there can be no offence "of attempt
to murder". Intent which is a state of mind cannot be proved by precise direct
evidence, as a fact it can only be detected or inferred from other factors. Some of
the relevant considerations may be the nature of the weapon used, the place where
injuries were inflicted, the nature of the injuries and the circumstances in which the
incident took place. On the evidence on record, where the prosecution has been able
to prove only that the villagers have sustained injuries by indiscriminate firing and it
was an open area with none of the injured nearby there is a complete lack of
evidence of intention to cause such injuries for which the accused persons
Parshuram and Bishram could have been convicted under Section 302 IPC. Nature
of the injuries sustained by the villagers is simple. None of the witnesses have stated
that the firearm causing injuries was being used by any particular accused for
causing injuries to them. In fact the injured have not seen any of the accused
persons using firearms. There is no evidence about the distance from which the said
two accused fired. The only evidence led by the prosecution is indiscriminate firing
by Parshuram and Bishram which has caused simple injuries to the villagers.
Amongst the injured villagers, only PW 1 and DW 1 were examined. Thus this
11 Cr. Appeal (DB) No. 335 of 2002
evidence does not constitute the intention or knowledge of the accused persons for
committing the murder or doing of an act towards it. The evidence only shows that
the villagers have sustained simple injuries. In the circumstances, we acquit
Parshuram and Bishram under Section 307 IPC.
In the present case it is found that there is no intervening
circumstances by which this appellant has been prevented to cause injury
in order to commit murder of the injured persons and in the result, it is
found that the learned Trial Court has committed an error in holding the
guilt of the appellant for the offence punishable under section 307 of the
IPC for causing injury upon P.W.2 and P.W.4 in order to commit the
offence of attempt to murder rather it is clear cut case where the
appellant having lethal weapon has caused injuries upon the injured
persons within the meaning of Section 324 of the IPC and therefore the
conviction of the appellant for the offence punishable under Section 307
of the IPC is fit to be altered and modified for the offence punishable
under Section 324 of the IPC.
24. As a consequence, the impugned judgment of conviction and
order of sentence dated 28.06.2002 passed by the court of learned 1 st
Additional Sessions Judge, East Singhbhum at Jamshedpur in Sessions
Trial No. 220 of 1990 against this appellant is set aside and the
conviction of the appellant is modified only by holding him guilty for
the offence punishable under Section 324 of the IPC.
25. So far as the sentence is concerned, it is found that this appellant
has already remained in jail during trial from 09.08.1984 to 12.01.1985
and after conviction from 28.06.2002 to 23.09.2002 total period about 8
months and there is nothing on record to show any criminal history of
the appellant and dispute had arisen due to landed property dispute.
Therefore, no useful purpose would be served by sending the appellant
again to the jail and justice would be meted if the appellant is sentenced
for a term of the period already undergone by him and a suitable amount
of fine is imposed by way of compensation in order to given to the
victim P.W.2 Sk. Rahman Ali and P.W.4 Sk. Siraj Ali for the offence
punishable under Section 324 of the IPC.
26. Accordingly, appellant is convicted for the offence punishable
under Section 324 of the IPC and he is sentenced to undergo
12 Cr. Appeal (DB) No. 335 of 2002
imprisonment for a term of the period already undergone by him in
custody and further he is sentenced to pay a fine of Rs.50,000/- (Rupees
Fifty Thousand only) to the victim P.W.2 Sk. Rahman Ali (who had
sustained grievous injury also) and Rs. 25,000/- (Rupees Twenty-Five
Thousand only) to the victim P.W.4 Sk. Siraj Ali (who had sustained
simple injuries only) by way of compensation.
27. Since the appellant is on bail and therefore, a time of six months
is given to the appellant to deposit the aforesaid fine amount and in
default of payment of fine, appellant is directed to undergo S.I. for a
period of 2 years. The appellant may deposit the fine amount through the
Nazarat of the concerned Civil Court in order to give it to the
victim/injured P.W.2 Sk. Rahman Ali and P.W.4 Sk. Siraj Ali, by way of
compensation.
28. The learned Trial Court is directed to ensure that the said fine
amount is deposited within the stipulated period of time and if the same
is not deposited by the appellant, then he will serve the sentence as
awarded in case of default of payment of fine by taking all necessary
measures as per the provisions of law.
29. The appellant has been allowed to deposit the said fine amount
through the Nazarat of the concerned Civil Court and the moment
appellant deposits the fine amount, he shall be released and/ or
discharged from the liabilities of bail bonds accordingly in this case.
30. The learned court below is also directed that on deposit of the said
fine amount by the appellant, a notice be sent to the victim/injured P.W.2
Sk. Rahman Ali and P.W.4 Sk. Siraj Ali and on their appearance the said
fine amount, if so, deposited by the appellant, shall be disbursed to them.
In case, the said victims are not traceable or not available or not found at
the given address, or do not appear before the Court, the same shall be
disbursed to the close or near relatives or kith and kin of the said
respective victims or else, as the concerned learned trial court may deem
fit and proper, and in this regard the Court concerned may also involve
the Para Legal Volunteer (PLV) of District Legal Services Authority
(DLSA), East Singhbhum, Jamshedpur, if required and the Secretary,
D.L.S.A., East Singhbhum, Jamshedpur is directed to co-operate in this
13 Cr. Appeal (DB) No. 335 of 2002
regard.
31. This Criminal Appeal is partly allowed as above.
32. Let the Trial Court Records and the copy of the judgment be also
transmitted to the learned Court below for its compliance in letter and
spirit.
(Dr. S.N. Pathak, J.)
(Navneet Kumar, J.)
A.Mohanty
Jharkhand High Court
Dated 23.09.2024
14 Cr. Appeal (DB) No. 335 of 2002
