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2015 DIGILAW 806 (JHR)

Dhurva Das @ Dhuraba Das v. State of Jharkhand

2015-07-15

P.P.BHATT, VIRENDER SINGH

body2015
Order Virender Singh, J. 1. In all the following nine accused (1) Shamshad Khan(2) Naushad Khan (3) Belal Khan (4) Irshad Khan (5) Shamim Ahmad (6) Faijaan Khan (7) Neyaj Khan (8) Maksud Alam @ Maksud Ansari and (9) Dhurva Das faced the trial in F.I.R. No.264 of 2000 of Police Station Jora Pokhar(Dhanbad). All the nine accused now stand convicted for the offence of 2.Section 304 (Part II) of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- each, in default thereof simple imprisonment for a period of three months. Being aggrieved of the said judgment, accused Dhurva Das @ Dhuraba Das has preferred a separate appeal bearing Cr. Appeal(DB) No.301 of 2015 whereas remaining eight accused have preferred Cr. Appeal(DB) No. 285 of 2015. 2. Since all the nine accused are praying for suspension of sentence during pendency of the instant appeal, records of both appeals are taken together. 3. One Bablu Khan is the deceased in this case, who, according to the prosecution, had received injuries at the hands of all the nine accused on 12th October, 2000 at about 8.30 p.m. and was admitted in the hospital on that very date. However, he succumbed to the injuries on 24th October, 2000 and it is thereafter on the following day i.e. 25.10.2000 his father, namely, Shamshad Khan (PW-3) lodged report with the police stating therein that his son while being treated in the hospital on account of injuries received by him at one stage when he could talk, disclosed that all the accused on a particular date i.e. 12.10.2000 at a particular date i.e. 8.30 p.m. had assaulted him from different weapons like rod, hockey sticks, and butt of gun. The exact date of disclosing this fact to the father of the deceased (first informant) is 15.10.2000 whereas first information report vis-a-vis the present occurrence is reported on 25.10.2000. 4. Mr. Tripathy, learned Senior Advocate, appearing for all the nine accused stated that it appears that the police or for that matter the complainant side had given a complete twist to the entire occurrence. 4. Mr. Tripathy, learned Senior Advocate, appearing for all the nine accused stated that it appears that the police or for that matter the complainant side had given a complete twist to the entire occurrence. He submitted that, in fact, on 12th October, 2000 deceased-Bablu Khan along with one friend namely Naushad @ Bablu had made an attempt to 3.assault Irshad Khan, the accused herein, with a pistol and in fact released a shot from his fire arm. Incidentally Irshad Khan could save himself. He submitted that it is thereafter certain persons from the side of accused-Irshad Khan, all incidentally present there assembled and snatched pistol from the hands of the deceased-Babloo Khan and his friend. However, his friend- Naushad could manage to run away from the scene but deceased Babloo could be nabbed by the persons who had assembled there. Learned counsel submitted that in that occurrence, undoubtedly deceased Bablu had received injuries at the hands of certain persons, who had assembled there. Deceased-Babloo along with his fire arm (pistol) thereafter was handed over to police. Since he had received certain injuries he was shifted to the hospital for treatment. Learned counsel submitted that after the formal arrest of Bablu (since deceased) was made by the police and the recovery memo was also prepared, a request was made by the concerned Investigating Officer before the Ilaka Magistrate on 14th October, 2000, seeking judicial remand of the accused stating that immediately after the arrest of Babloo-deceased, he was shifted to hospital and was getting treatment and whenever he is discharged from hospital, he will be produced before the court for judicial remand. 5. In this regard, Mr. Tripathy has placed on record the copy of FIR registered at the instance of accused-Irshad Khan, the arrest and the recovery memo chart prepared by the police with regard to arrest of Babloo-deceased and the order-sheet dated 14th October, 2000. 6. Mr. Tripathy while taking the Court to some material evidence, in particular, the evidence of mother and father of the deceased (PW 1 and 3) states that it has come in evidence that deceased Bablu was involved in a case of dacoity and snatching and had remained in jail also. It has also come in 4.the statement of mother of the deceased that police had brought her son for treatment in the hospital. It has also come in 4.the statement of mother of the deceased that police had brought her son for treatment in the hospital. Father of deceased Shamshad Khan has also stated that his son was under police custody in the hospital. From this, Mr. Tripathy wants to develop that whatever mentioned in the FIR registered at the instance of Irshad Khan is actually correct and it appears that the story put forth by Irshad Khan is most probable on the face of it. 7. Mr. Tripathy then submitted that even otherwise the story put forth by father of the deceased on 25.10.2000 i.e. after the death of his son (Bablu Khan-deceased) that he disclosed about assault made by all the accused on him with different weapons in a photographic manner, as one finds in the first information report, appears to be totally farce for a very simple reason that had he come to know of this fact on 15.10.2000 itself, there appears to be no reason to keep mum for another ten days in not disclosing this to the police. Learned counsel stated that it appears that it is only after the death of Bablu Khan in the hospital, a coined up story had been brought forward to implicate all the accused in this case by knitting a net wider. 8. Mr. Tripathy lastly submitted that even otherwise taking the case on its face value, it does not fall within the mischief of even Section 304 (Part-II) IPC and it can, at the most, be stretched to Section 325 read with 149 IPC. He submitted that all the nine accused were on bail during trial and never misused concession of bail, at any stage. They are now in custody after suffering conviction vide impugned judgment. He thus prays for suspension of sentence qua all the nine accused. 9. Prayer of bail is vehemently opposed by learned counsel for the State. 10. Keeping in view the totality of facts and circumstances of the present case and without commenting on the merits of the case, lest it may prejudice the case of either side at the relevant stage, all the nine accused deserve the concession of suspension of sentence, during the pendency of appeal. Prayer allowed. 11. 10. Keeping in view the totality of facts and circumstances of the present case and without commenting on the merits of the case, lest it may prejudice the case of either side at the relevant stage, all the nine accused deserve the concession of suspension of sentence, during the pendency of appeal. Prayer allowed. 11. All the nine appellants, namely, Dhurva Das @ Dhuraba Das, Belal Khan @ B. Ahmad Khan, Shamshad Khan, Irshad Khan, Naushad Khan, Faijaan Khan @ Faizan Khan, Maksud Alam @ Maksud Ansari, Shamim Ahmad and Neyaj Khan @ Neyaj, are directed to be released on bail, during pendency of appeal, on their furnishing bail bonds of Rs.10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of the learned trial court (Additional Sessions Judge-XIII, Dhanbad) in connection with Sessions Trial No.459 of 2002, subject to their depositing Rs.10,000/- each, as already directed by the learned trial court. 12. Let the order be sent to the concerned court through Fax.