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2006 DIGILAW 768 (JHR)

Samir Ansari v. State Of Jharkhand

2006-06-29

DHANANJAY PRASAD SINGH

body2006
JUDGMENT D.P. Singh, J. 1. The sole appellant Samir Ansari has preferred this appeal against the judgment of conviction dated 14 TH February, 2001 and order of sentence dated 19 TH February, 2001 passed by Shri D.G.R. Patnaik 1 st Additional Sessions Judge, Bokaro at Chas in Sessions Trial No. 348 of 1993 whereby and whereunder the appellant has been convicted under Sections 325/323 of the Indian Penal Code and has been sentenced to undergo R.I. for a period of five years for the offence under Section 325 of the I.P.C. and six months R.I. for the offence under Section 323 of the I.P.C. both the sentences to run concurrently. 2. Brief facts leading to this appeal are that in the morning of 20.10.1992 the informant Basir Ansari was in his house situated in Ansari Mohalla p.s. Chas, district Bokaro when he saw that exchange of hot words was taking place between his wife and the wife of the appellant. According to him he went and rebuked his wife but in the mean time the appellant came there along with tangi and gave a blow on the head of his wife. It is further stated that she fell down bleeding profusely from her head after which he was assaulted with Lathi on his head, The incident was seen by the mohalla people who carried both of them for treatment in Bokaro General Hospital. The Statement of the informant was recorded by Chas police at about 1 p.m. and Chas P.S. Case No. 72 of 1992 was registered under Sections 307, 323, 324, 326 of the Indian Penal Code against the appellant. The police investigated the case and finally submitted charge sheet against the appellant under Section 324, 326, 307 of the Indian Penal Code. The case was committed for trial by the court of sessions and charges were framed against the appellant under the aforesaid sections. 3. The trial court after examining the witnesses found and held the appellant guilty under Section 323/325 of the Indian Penal Code. The appellant is on provisional bail. The learned Counsel for the appellant submitted that the trial court has committed a mistake of fact by convicting the appellant in a case which was registered after his case for assault etc against the informant vide Chas P.S. Case No. 71 of 1992 before registration of this case. The appellant is on provisional bail. The learned Counsel for the appellant submitted that the trial court has committed a mistake of fact by convicting the appellant in a case which was registered after his case for assault etc against the informant vide Chas P.S. Case No. 71 of 1992 before registration of this case. It was also submitted that the doctors who examined the injured persons, have not supported the prosecution version of any grievous injury rather they found the injury to be simple in nature except suggested x-ray. According to learned Counsel for the appellant, story of assault with tangi on the head of P.W. 6 has not been supported by the injury report by doctor P.W. 8. Learned Counsel further submitted that the occurrence if any took place during hot discussions, so the appellant did not deserve to be convicted under Section 325 of the Indian Penal Code. It is also asserted that non examination of I.O., with major contradictions in the evidence of witnesses and the prosecution version has materially prejudiced the case. 4. I have given anxious consideration to the points raised by the learned Counsel for the appellant along with the impugned judgment and the evidences available in the case records. The defence has brought on record charge sheet of Chas P.S. Case No. 71 of 1992 and FIR for an occurrence of the same date and time in which the appellant has alleged assault made by five persons including the informant, vide Ext-A. On perusal of this FIR it appears that some occurrence has taken place on 20.10.1992 in the morning in which the appellant has also received injuries. However this fact has been denied by the prosecution witnesses vehemently. The prosecution has examined altogether 10 witnesses out of whom P.W. 10 is a formal witness; P.W. 8 and 9 are doctors who examined P.W. 6 and 5 respectively. P.W. 8 has found a lacerated wound on the scalp of P.W. 6 who mentioned the injury was grievous in nature caused by sharp cutting instrument. The injury on the informant has been mentioned simple in nature. 5. P.W. 1 Yunus Ansari has supported the prosecution case, as he is the own brother of the informant. However he admitted vide para 4 that his statement was not recorded by police. The injury on the informant has been mentioned simple in nature. 5. P.W. 1 Yunus Ansari has supported the prosecution case, as he is the own brother of the informant. However he admitted vide para 4 that his statement was not recorded by police. He denied that informant was involved in counter case filed by the appellant and arrested by police. P.W. 3 Gulam Ansari has also supported the prosecution version. However he admitted that Basir was arrested while he was being treated in Hospital. He has admitted vide para 6 that the appellant has filed earlier case for the same occurrence. P.W. 4 Shivpati Baauri has supported the fact that the assault took place between the parties. He has even admitted in examination in chief that the appellant was assaulted by the prosecution party. P.W. 2 has been declared hostile by the prosecution, therefore the fact remains that on 20.10.1992 an occurrence took place in which the appellant has also received injuries but this has been denied by informant and his wife vehemently, P.W. 5 has admitted that he was assaulted by Lathi by the appellant while his wife was assaulted with tangi for which they were treated in Bokaro General Hospital, He has admitted vide para 12 that Samir was also treated in Referral Hospital. He contradicted himself vide para 14 that Samir used the tangi on the head on his wife and used Lathi of the said Tangi on his head. He further admitted vide para 15 that the appellant has reached police station before him and lodged a case. P.W, 5 admitted vide para 13 that for the case lodged by the appellant, her husband has remained in custody. Therefore it has come on record that the appellant has also lodged an information regarding the assault on the same date but the prosecution has tried to deny this fact. The non examination of the I.O. who could have thrown light on the controversy, materially prejudiced the defence. 6. I have further found that there are material contradictions in the manner of assault alleged by the injured witnesses. It is also a fact that the incident took place in October 1992 and the trial has concluded in February 2001. 7. The non examination of the I.O. who could have thrown light on the controversy, materially prejudiced the defence. 6. I have further found that there are material contradictions in the manner of assault alleged by the injured witnesses. It is also a fact that the incident took place in October 1992 and the trial has concluded in February 2001. 7. Having considered all the facts and circumstances, I find that the prosecution has not been able to bring home the charges against the appellant beyond all reasonable doubts. Accordingly this appeal has got merit and deserves to be allowed. The conviction of the appellant is hereby set aside and the appellant is released form the liabilities of his bail bonds. In this manner, this appeal is Disposed of.