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Jharkhand High Court · body

2009 DIGILAW 529 (JHR)

Jamiruddin Sheikh v. State of Jharkhand

2009-04-12

PRASHANT KUMAR

body2009
Order By Court.-This appeal is directed against the judgment of conviction and order of sentence dated 27.9.2002 passed by 1st Additional Sessions Judge, Pakur in Sessions Case No. 208 of 1996 whereby and where under the learned court below convicted appellant no. 1 under Section 323 of the I.P.C and sentenced him to undergo rigorous imprisonment for nine months, convicted appellant no. 2 for the offence under Sections 326 and 324 of the I.P.C and sentenced him to undergo rigorous imprisonment for three years for the offence under Section 326 of the I.P.C. and rigorous imprisonment for one year under Section 324 of the I.P.C. and convicted appellant no. 3 under Section 324 of the I.P.C. and sentenced him to undergo rigorous imprisonment for one year. 2. The case of prosecution, in short, as per the fardbeyan of Kafijuddin Sk. dated 2.10.1995, is that at the time of occurrence he was present in the verandah of his house. It is further alleged that appellants alongwith other accused persons came armed with lathi, danda, sword, pistol, bhala, balam etc. It is alleged that appellant no. 1 Jamiruddin Sheikh assaulted informant with iron rod. It is then stated that on hulla, the informant's sons Anzarul Sheikh and Azfarul Sheikh and nephews namely Serajul Sheikh and Faizul Sheikh arrived. It is alleged that the informant's sons and nephews were also assaulted by the appellants and co-accused. ,It is further alleged that thereafter all the accused persons entered in the house of informant and looted cash, ornaments and other household articles and fled away. 3. On the basis of aforesaid fardbeyan, Pakur (M) P.S. Case No. 223 of 1995 dated 2.10.1995 under Sections ' 147, 148, 149, 323, 324, 452, 307 and 379 of the I.P.C. instituted and police took up investigation. It appears that after completing investigation, police submitted charge-sheet against the appellants as well as other co-accused under Sections 147, 148, 149, 307, 379, 448, 323, 324 and 326 of the I.P.C. After cognizance of the offence, the case has been committed to the Court of Sessions, as the offence under Section 307 of the I.P.C. is exclusively triable by the Court of Sessions. 4. It reveals from record that the charges under Sections 395, 452, 307/34 of the I.P.C. framed against the appellants and other seven co-accused. 4. It reveals from record that the charges under Sections 395, 452, 307/34 of the I.P.C. framed against the appellants and other seven co-accused. The said charges read over and explained to the accused persons including the appellants to which they pleaded not guilty and claimed to be tried. Thereafter, the prosecution had examined altogether eight witnesses in support of its case. After the close of the case of prosecution, the statement of appellants and other co-accused persons recorded under Section 313 of the Cr.P.C. in which their defence is of total denial. It appears that the learned court below after considering the evidences available on record acquitted all the accused persons including the appellants from the charges levelled, against them under Sections 395, 452 and 307/34 of the I.P.C., but however by the same judgment it convicted and sentenced the appellants as aforesaid. Against that the present appeal has been filed. 5. Sri Rajeeva Sharma, learned Senior Counsel appearing. for the appellants submitted that in the instant case, fardbeyan has been recorded on 2.10.1995, though the occurrence took place on 27.9.1995. Thus, there is delay of more than five days in lodging the fardbeyan. It is submitted that another statement of informant was recorded on 27.9.1995 in which the place of occurrence and manner of occurrence is different. The aforesaid statement of informant dated 27.9.1995 has been suppressed by the prosecution and on the basis of that fardbeyan, F.I.R. has not been instituted. It is submitted that in the instant case first version of informant has been suppressed with a view to make embellishment in the case of prosecution, thus, the entire case of prosecution becomes doubtful. It is further submitted that the learned court below has considered the aforesaid fact, but in spite of that convicted the appellants, therefore the impugned judgment cannot be sustained. 6. Learned Additional P.P. had supported the impugned judgment, but however he has fairly stated that in view of the admission of I.O and also in view of Ext.-A, it is true that the first version to informant has not been brought on record by the prosecution. 7. Having heard the submission, I have gone through the record of the case and scrutinized the evidences available on record. From perusal of Ext.-A, I find that on 27.9.95 fardbeyan of informant Kafijuddin Sk. 7. Having heard the submission, I have gone through the record of the case and scrutinized the evidences available on record. From perusal of Ext.-A, I find that on 27.9.95 fardbeyan of informant Kafijuddin Sk. was recorded by the Assistant Sub-Inspector, G.S. Singh of Pakur (M) Police Station. In the said statement, the informant stated that the occurrence took place in the morning at about 5:00 a.m. in his field. In the said statement the informant had further stated that Hakim Sheikh, Jamiruddin Sheikh and Amu Sheikh had arrived on his land and some altercation took place between them in connection with irrigation of field. He further stated that on hulla, other accused persons namely Abdul Sheikh, Saiful Sheikh, Ajabul Sheikh came armed with lathi and danda and they assaulted informant's son Anzarul Sheikh, Afzarul Sheikh and nephew Faizul Sheikh and Sirazul Sheikh. Thus, from perusal of Ext- A, it is clear that the manner of occurrence and place of occurrence is different from that of Ext.-2. It is worth mentioning that P.W. 7, who is I.O of present case, has admitted in his deposition that Ext.-A has been entered in the register of sanha vide Sanha No. 462 dated 27.9.1995. Under the said circumstance if the information regarding the occurrence had already been given to the police on 27.9.1995 then the subsequent fardbeyan (Ext,-2) is hit by Section 162 of the Cr.P.C. In my view withholding of first version of prosecution goes to the root of the case and makes it doubtful Moreover, in the instant case from the two statements of informant it appears that place of occurrence and manner of occurrence are different, which also cast a serious doubt on' the entire prosecution case. Under the said circumstance, I find that the prosecution has not been able to bring home the charges levelled against the appellants beyond the shadow of all reasonable doubt. Under the said circumstance, the impugned judgment of conviction and order of sentence cannot be sustained in this appeal. 8. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted from the charges levelled against them. They are also discharged from the liabilities of the bail bonds furnished by them.