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2017 DIGILAW 2078 (JHR)

Nizam Ansari @ Seikh Nizam v. State of Jharkhand

2017-12-02

AMITAV K.GUPTA, D.N.PATEL

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JUDGMENT : D.N. Patel, J. These criminal appeals have been preferred by the original accused of Sessions Trial No. 90 of 2007 challenging the judgment of conviction and order of sentence passed by the Principal District & Sessions Judge, Seraikella Kharsawan, Seraikella dated 16th/17th May, 2012 whereby these appellants have been convicted mainly for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof for imprisonment for life and fine of Rs. 5,000/- each and in case of default, further simple imprisonment for 6 months has been awarded. These appellants have also been convicted for the offence punishable under Section 341 of the Indian Penal Code to be read with Section 34 thereof and they are sentenced to undergo simple imprisonment for one month. Both the sentences have been ordered to run concurrently. 2. The case of the Prosecution : The case of the prosecution is that on 29.3.2007 at 21:30 hours (i.e. 9:30 P.M.) the informant Hamida Khatun (P.W. 7) gave fardbeyan to police that today at 8.00 P.M. her father Abdul Mannan (deceased) was standing in front of his house and at that time her uncle Nasir Ansari (accused) came there and took her father towards the road side. After some time Hullah (Noise) was raised on that place then informant and her mother went running there and saw that Nizam Ansari @ Seikh Nizam was holding Kudal in his hand, Nasir Ansari @ Seikh Ansari was holding lathi in his hand, Gudu Ansari @ Gidu Ansari was holding Kudal in his hand and Sarrun was holding lathi in her hand and they were assaulting her father in front the house of Siraj. The informant further alleged that Gudu Ansari @ Gidu Ansari assaulted her father on head by Kudal due to which her father received head injury and blood was oozing out from his head and when they raised alarm, then the accused persons fled away. The informant further alleged the cause of occurrence that there was a Government water supplying tap in front of her house from which they get water and the accused persons told them to close that water tap, but, they did not want to close the water tap because they get water from that tap. Due to this reason, the accused persons assaulted her father with intention to kill him. Due to this reason, the accused persons assaulted her father with intention to kill him. Eleven witnesses were examined by the prosecution: P.W.1 Kalu Ansari Declared Hostile Witness. P.W.2 Saraj Ansari Declared Hostile Witness. P.W.3 Md. Mushid Ansari Declared Hostile Witness. P.W.4 Dr. Jagdish Prasad He is the Doctor who has examined the injury of Abdul Mannan and has proved the injury report i.e. marked as Ext.-1. P.W.5 Md. Zakir Declared Hostile Witness. P.W.6 Anand Kumar Sahu Declared Hostile Witness. P.W.7 Hamida Biwi She is the informant of this case and is daughter of deceased Abdul Mannan. She is the Eyewitness of this case. She has proved her signature (in urdu) in fardbeyan i.e. marked as Ext.-2. P.W.8 Masud Ansari He is the Son of deceased Abdul Mannan and is Eyewitness of this case. P.W.9 Gurmatan Biwi She is the wife of deceased Abdul Mannan and is Eye witness of this case. P.W.10 Sri Niwas Yadav (I.O.) He is the Investigating Officer of this case. He has proved the fardbeyan and formal FIR i.e. marked as Exts.-4 and 5 respectively. P.W.11 Dr. Yogendra Nath He is the Doctor who has conducted the Post mortem of the dead body of Abdul Mannan and has proved the Post mortem report i.e. marked as Ext.-6 3. Arguments canvassed by the learned counsel for the appellants: It is submitted by the learned counsel for the appellants that the prosecution has failed to prove the offence of murder, committed by these appellants, beyond reasonable doubt. Moreover, there are major omissions and contradictions in the depositions of the prosecution witnesses. It is also submitted by the learned counsel for the appellants that the socalled eyewitnesses are in fact not the eyewitnesses at all. All of them are close relatives of the deceased. Despite other witnesses were available, they were not examined by the prosecution witnesses because incident has taken place outside the house of the informant. It is also submitted by the learned counsel for the appellants that even as per the case of the prosecution, Nasir Ansari @ Seikh Nasir (appellant no. 2 of Cr. Appeal No. 662 of 2012) had gone at the house of the deceased and he called the deceased for a meeting. There is no allegation that this Nasir Ansari @ Seikh Nasir was having any weapon in his hand. 2 of Cr. Appeal No. 662 of 2012) had gone at the house of the deceased and he called the deceased for a meeting. There is no allegation that this Nasir Ansari @ Seikh Nasir was having any weapon in his hand. Thus, there was no intention of the accused persons to cause murder of the deceased. There was no pre-meditation and the action cannot be said to be pre-planned and well designed. It is also submitted by the learned counsel for the appellants that the weapons which are alleged in the hand of Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari, they have not caused any injury upon the body of the deceased, as per the medical evidence given by P.W.11. It is also submitted by the learned counsel for the appellants that there is only one head injury by hard and blunt substance. In the medical evidence, P.W.11 has never stated that the injuries sustained upon the body of the deceased was capable of causing death of deceased in ordinary course of nature. Moreover, the case of Nasir Ansari is falling within Exception-4 of Section 300 of the Indian Penal Code. Moreover, the death of the deceased has not taken place on the spot. He was referred from Ichagarh Hospital to M.G.M. Hospital at Jamshedpur and the death has taken place at Guru Nanak Hospital, that too after two days of occurrence. Thus, the case of Nasir Ansari @ Seikh Nasir is also covered by Section 304 Part-II of the Indian Penal Code. Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari have been granted bail by suspension of sentence, whereas, Nasir Ansari @ Seikh Nasir is in judicial custody from approximately 10 years and 6 months. It is also submitted by the learned counsel for the appellants that the motive, as alleged by the prosecution witnesses, is about water and water tap. Thus, there was no pre-meditation, no pre-planned action on the part of the appellants, on the contrary, there were allegations against accused persons, whereas, no chargesheet has been filed against one of them. It is also submitted by the learned counsel for the appellants that the motive, as alleged by the prosecution witnesses, is about water and water tap. Thus, there was no pre-meditation, no pre-planned action on the part of the appellants, on the contrary, there were allegations against accused persons, whereas, no chargesheet has been filed against one of them. The other exaggerated version of the prosecution witnesses, if separated from truth, only allegations are against Nasir Ansari @ Seikh Nasir as stated hereinabove and his case is also falling within Exception-4 of Section 300 of the Indian Penal Code and he is in judicial custody from 10 years and 6 months and, hence, at the highest he may be punished only under Section 304 Part-II of the Indian Penal Code. Rest of two accused have not caused any injury upon the body of the deceased nor they had gone at the residence of the deceased to call him. There is no participation of Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari in causing death of the deceased which has taken place after two days of the occurrence and, hence, Cr. Appeal (DB) No. 650 of 2012 may kindly be allowed and Cr. Appeal (DB) No. 662 of 2012 may be allowed for Nizam Ansari @ Seikh Nizam and so far as Nasir Ansari @ Seikh Nasir is concerned, his case is covered under Section 304 Part-II of the Indian Penal Code at the highest, otherwise, even for Nasir Ansari @ Seikh Nasir looking to the F.I.R. and other depositions of the prosecution witnesses, there are also major omissions and contradictions. 4. Arguments canvassed by the learned A.P.P. for the State: Learned A.P.P. appearing on behalf of the State submitted that the case of the prosecution is based upon more than one eyewitnesses, who are PW.7, PW.8 and P.W.9. They have proved the place of occurrence, time of occurrence and the manner in which the occurrence has taken place. There is no question of misidentity of the accused persons, whatsoever arises. There are no major omissions and contradictions in the depositions of the prosecution witnesses. They have proved the place of occurrence, time of occurrence and the manner in which the occurrence has taken place. There is no question of misidentity of the accused persons, whatsoever arises. There are no major omissions and contradictions in the depositions of the prosecution witnesses. Immediate is the F.I.R. and all the eye-witnesses have stated that the accused persons have assaulted Abdul Mannan, who sustained head injuries and immediately he was taken to Ichagarh Hospital from where he was referred to M.G.M. Hospital, Jamshedpur and, thereafter, he was taken to Guru Nanak Hospital where the deceased expired, whereas, role of Nasir Ansari @ Seikh Nasir is crucial one because this accused (appellant no. 2 of Cr. Appeal No. 662 of 2012) came at the house of the deceased and called the deceased out of the house and, thereafter, assault has taken place. Thus, there was pre-planned and well designed action on the part of Nasir Ansari @ Seikh Nasir. Moreover, all the accused persons have caused injuries upon the body of the deceased, as stated by the prosecution witnesses and, hence, they have been rightly punished for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof for life imprisonment by the learned trial court and as there was wrongful restraint by these appellants, they have been rightly punished under Section 341 of the Indian Penal Code to be read with Section 34 thereof for simple imprisonment for one month and, hence, these criminal appeals may not be entertained by this Court. REASONS: 5. Having heard learned counsels for both the sides and looking to the evidences on record, so far as Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari are concerned we hereby quash and set aside the judgment of conviction and order of sentence passed by the Principal District & Sessions Judge, Seraikella-Kharsawan, Seraikella dated 16th/17th May, 2012 in Sessions Trial No. 90 of 2007 and so far as Nasir Ansari @ Seikh Nasir is concerned, his conviction is converted from Section 302 of the Indian Penal Code into Section 304 Part-II of the Indian Penal Code mainly for the following evidences on record: (i) It is the case of the prosecution that the occurrence has taken place on 29.3.2007 at about 20:00 hours. The statement was given before the police by Hamida Khatun (P.W. 7), who is daughter of the deceased, that Nasir Ansari @ Seikh Nasir came at their house and called her father out of the house and, thereafter, she along with her mother heard alarm raised by her father nearby water tap outside the house where they rushed and saw that Nizam Ansari @ Seikh Nizam, Nasir Ansari @ Seikh Nasir and Gudu Ansari @ Gidu Ansari were assaulting her father-Abdul Mannan. Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari were having Kudal in their hand and Nasir Ansari @ Seikh Nasir was having Lathi in his hand. The father of the informant sustained injuries and, thereafter, he was taken to the hospital initially at Ichagarh and thereafter to M.G.M. Hospital, Jamshedpur and thereafter to Guru Nanak Hospital where he expired after two days. Looking to her deposition, she has stated that Nasir Ansari @ Seikh Nasir came at her house without any weapon in his hand. Thus it appears that there was no premeditation pre-planned and well designed action to cause murder of the deceased. The weapon alleged to have been used is Lathi-hard and blunt substance. The motive is alleged about water tap nearby the house of the deceased. Looking to her deposition, it appears that Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari were having Kudal in their hand, but, there was no injury of incised wound upon the body of the deceased as stated by P.W.11 (medical evidence). Thus there is no participation of Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari in causing murder of the deceased. (ii) Looking to the deposition given by P.W.8 Masud Ansari, who is son of the deceased, he has stated that Nasir Ansari @ Seikh Nasir came at his house for calling his father out of his house for a meeting. His statement was recorded after the death of deceased on 31.3.2007, whereas, the incident has taken place on 29.3.2007 and F.I.R. was lodged on 30.3.2007. Looking to the deposition of P.W.8 and also the injuries caused by Nasir Ansari @ Seikh Nasir upon the body of the deceased, as per this witness also it cannot be said that there was pre-meditation and well designed action on the part of the accused in causing murder of the deceased. Looking to the deposition of P.W.8 and also the injuries caused by Nasir Ansari @ Seikh Nasir upon the body of the deceased, as per this witness also it cannot be said that there was pre-meditation and well designed action on the part of the accused in causing murder of the deceased. The motive is alleged about water tap nearby the house of the deceased. The death has taken place after two days of the occurrence. The deceased was referred from one hospital to another. (iii) Looking to the deposition given by P.W.9, also the participation in causing murder of the deceased is only by Nasir Ansari @ Seikh Nasir. There are no injuries caused by Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari, looking to the weapon in their hand and the evidence given by P.W.11. The death of the deceased has taken place, even as per this witness P.W.9, after two days of the occurrence and the motive is about water tap. (iv) Looking to the deposition given by P.W.11 Dr. Yogendra Nath who has conducted post mortem of the body of the deceased which is at Ext.-6, it appears that as per the medical opinion, injury was capable of being caused by hard and blunt substance. Thus there is no injury caused by Kudal which is alleged in the hand of Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari. Lathi was in the hand of Nasir Ansari @ Seikh Nasir. Moreover, mainly there is one injury which is 6 c.m. x ½ c.m. scalp deep. The death has been caused due to head injury. Thus, in the medical evidence, P.W.11 has never stated that injury was sufficient in ordinary course of nature to cause death of the deceased. Thus, looking to the totality of the evidence on record, it appears that:- (a) Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari had never gone at the house of the deceased to call him. (b) Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari were alleged to have Kudal in their hand as a weapon, but, as per the medical evidence, there are no injuries upon the body of the deceased by this weapon. (c) Nasir Ansari @ Seikh Nasir had gone to call Abdul Mannan (deceased) for a meeting purpose, as stated by P.W.8. (c) Nasir Ansari @ Seikh Nasir had gone to call Abdul Mannan (deceased) for a meeting purpose, as stated by P.W.8. Thus, there was no intention to cause murder of the deceased. (d) Nasir Ansari @ Seikh Nasir had never gone at the house of the deceased for calling him with weapon. Thus, it reflects absence of intention to cause murder of the deceased. (e) The injury sustained by the deceased is by hard and blunt substance, as stated by P.W.11 Dr. Yogendra Nath, but, medical evidence is not to the effect that the injury sustained by the deceased was capable of causing death of the deceased in ordinary course of nature. (f) The death of the deceased has taken place after two days of the occurrence. From Ichagrah Hospital, he was referred to M.G.M. Hospital, Jamshedpur and from M.G.M. Hospital, he was referred/taken to Guru Nanak Hospital, where, the deceased later on expired after two days. (g) The motive is alleged about water tap. As per the depositions given by P.W.7, P.W.8 and P.W.9 and even as per the F.I.R., the dispute is about water tap. (v) It has been held by the Hon'ble Supreme Court in the case of Randhir Singh Vs. State of Punjab, reported in (1981) 4 SCC 484 in paragraphs 9 and 10, which read as under: "9. In our opinion having regard to the totality of circumstances viz. there is only one injury, that the weapon was not carried by the appellant in advance, that there was no premeditation, that he was a young college going boy, that there was some altercation between the deceased and his father and that the death occurred nearly after six days, one can only say that the appellant must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. Under these circumstances, in our opinion, the appellant is shown to have committed an offence under Section 304 Part-II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years. 10. Under these circumstances, in our opinion, the appellant is shown to have committed an offence under Section 304 Part-II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years. 10. Accordingly this appeal is allowed and the conviction of the appellant is altered from Section 302 of the IPC to Section 304 Part-II of the IPC, and the sentence of life imprisonment is reduced to rigorous imprisonment for five years." (emphasis supplied) (vi) It has been held by the Hon'ble Supreme Court in the case of Tholan Vs. State of T.N., reported in (1984) 2 SCC 133 in paragraph 12, which reads as under: "12. It is equally not in dispute that appellant gave only one blow with a knife. Appellant had no quarrel or dispute with deceased Sampat. It is not shown that deceased Sampat had anything to do with the chit organised by K.G. Rajan. No malice has been alleged to have been entertained by the accused towards deceased Sampat. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. It is the prosecution case that accused abused organisers of the chit. Deceased Sampat is not shown to be the organiser of the chit. Probably when the deceased Sampat told the accused not to misbehave in the presence of ladies and not to use vulgar and filthy language, the appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment, even the meeting was accidental. There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased which has proved fatal. Could the appellant be said to have committed murder? In other words, whether Part-I or Part-III of Section 300 IPC would be attracted in the facts of this case. Even Mr. Could the appellant be said to have committed murder? In other words, whether Part-I or Part-III of Section 300 IPC would be attracted in the facts of this case. Even Mr. Rangam learned counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant, when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part-III of Section 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One, can profitably refer to Jagrup Singh Vs. State of Haryana, Randhir Singh Vs. State of Punjab, Kulwant Rai Vs. State of Punjab and Hari Ram Vs. State of Haryana. To this list two more cases can be added : Jagtar Singh Vs. State of Punjab and Ram Sunder Vs. State of U.P. Having regard to the ratio of each of these decisions, we are satisfied that even if Exception I is not attracted, the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence under Section 304 Part-II of the Indian Penal Code. Having regard to the circumstances of the case, a sentence of 5 years would be quite adequate." (emphasis supplied) (vii) It has been held by the Hon’ble Supreme Court in the case of Rakesh Singha vs. State of H.P., reported in (1996) 9 SCC 89 in paragraph 20, which reads as under: "20. Now coming to the appeal preferred by the State (Criminal Appeal No. 186 of 1988) we do not find any merit in the appeal. The High Court was right in altering the conviction from one under Section 302 to Section 304 Part-II having regard to the fact that the death occurred after 24 hours of inflicting injury and also the type of weapon used for causing the injury. The High Court was right in altering the conviction from one under Section 302 to Section 304 Part-II having regard to the fact that the death occurred after 24 hours of inflicting injury and also the type of weapon used for causing the injury. We do not think that there is any case for further enhancing the sentence. For the foregoing reasons, we dismiss all the three appeals." (emphasis supplied) (viii) It has been held by the Hon'ble Supreme Court in the case of Dhan Singh Vs. State of Haryana, reported in (2010) 12 SCC 277 in paragraphs 26, 27 and 28, which read as under: "26. The counsel for the, appellants has placed reliance upon Jagriti Devi vs. State of H.P. where this Court had permitted to alter the offence of Section 302 IPC to Section 304 Part-II IPC while recording the finding that the khukri used in the commission of offence was kept by the deceased under her pillow, while she was sleeping in the verandah outside the house. Clearly, there was no intention on the part of the accused to kill the deceased. In Gurmukh Singh vs. State of Haryana there was a single lathi-blow on the spur of the moment resulting in death of the deceased and the Court permitted altering of the offence. There cannot be any dispute to the principles stated in the judgments relied upon on behalf of the appellant. But equally true is that there cannot be any straitjacket formula which can be universally applied to all cases of this kind. It will always depend upon the facts and circumstances of each case. 27. In the present case, there is no evidence to show that the appellant and other persons had gone to the house of Shiv Ram with the intention to kill him. In fact, it was a family dispute with regard to property. They had gone equipped with lathis and Dhan Singh was carrying an iron rod. 27. In the present case, there is no evidence to show that the appellant and other persons had gone to the house of Shiv Ram with the intention to kill him. In fact, it was a family dispute with regard to property. They had gone equipped with lathis and Dhan Singh was carrying an iron rod. He had given one blow on the head of the deceased and there was no intention to kill the deceased which is obvious from the fact that a case under Section 323 IPC was registered at the very outset and Head Constable Ram Rattan had consulted PW-1 who had declared the condition of the deceased to be stable as well as certified that he was in a fit state of mind to make statement, which ultimately became the dying declaration. From the collective analysis and examination of the evidence on record, it appears that the appellant had no intention to kill the deceased and did not give him a blow with the intention to kill or with the knowledge that it was likely to cause death. 28. From these circumstances and in line with the judgments afore-referred, we are of the considered view that the offence of the appellant could be altered from Section 302 to Section 304 Part-II IPC. Consequently, we hold the appellant guilty of offence under Section 304 Part-II and award him rigorous imprisonment for a period of 10 years with fine of Rs. 20,000/-. In default of payment of fine the accused shall undergo rigorous imprisonment for a period of six months." (emphasis supplied) 6. As a cumulative effect of the aforesaid evidences on record, the prosecution has failed to prove the offence of murder committed by Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari. These aspects of the matter have not been properly appreciated by the learned trial Court and, hence, the judgment of conviction and order of sentence passed by the learned trial Court in Sessions Trial No. 90 of 2007 dated 16th/17th May, 2012 deserves to be quashed and set aside. So far as Nasir Ansari @ Seikh Nasir is concerned, it appears that he has used hard and blunt substance. Initially when he had gone to the house of the deceased to call him, he had no weapon in his hand. So far as Nasir Ansari @ Seikh Nasir is concerned, it appears that he has used hard and blunt substance. Initially when he had gone to the house of the deceased to call him, he had no weapon in his hand. In fact, deceased was initially called out of the house for a meeting purpose, as stated by P.W.8 (son of the deceased) and the dispute was only about water tap. Medical evidence has never stated, as per P.W.11, that injury was sufficient in ordinary course of nature to cause death of the deceased. Thus, the case of Nasir Ansari @ Seikh Nasir is falling within Exception-4 of Section 300 of the Indian Penal Code looking to Clause Thirdly thereof. Moreover, the death has taken place after two days of the occurrence, as stated by P.W.7, P.W.8 and P.W.9 to be read with evidence given by P.W.10 and P.W.11. There is no repetition of blows by Nasir Ansari @ Seikh Nasir. Thus looking to Exception-4 of Section 300 of the Indian Penal Code, there is no pre-meditation and there was no intention on the part of Nasir Ansari @ Seikh Nasir to cause death of the deceased. Thus, his case is falling within Exception-4 of Section 300 of the Indian Penal Code. Nasir Ansari @ Seikh Nasir has remained in judicial custody from 10 years and 6 months, as submitted by learned A.P.P. appearing on behalf of the State. 7. In the light of the evidences on record, as there was no intention of causing death of the deceased by Nasir Ansari @ Seikh Nasir, we hereby convert the conviction of Nasir Ansari @ Seikh Nasir from Section 302 of the Indian Penal Code, 1860 into Section 304 Part-II of the Indian Penal Code. We, hereby, quash and set aside the conviction of Nasir Ansari @ Seikh Nasir who is appellant no. 2 in Cr. Appeal (DB) No. 662 of 2012 for causing murder of the deceased punishable under Section 302 of the Indian Penal Code read with Section 34 thereof passed by the Principal District & Sessions Judge, Seraikella-Kharsawan, Seraikella in Sessions Trial No. 90 of 2007 vide judgment of conviction and order of sentence dated 16th/17th May, 2012. We also, hereby, quash and set aside the conviction of Nizam Ansari @ Seikh Nizam (appellant no. 1 in Cr. We also, hereby, quash and set aside the conviction of Nizam Ansari @ Seikh Nizam (appellant no. 1 in Cr. Appeal No. 662 of 2012) and Gudu Ansari @ Gidu Ansari (appellant in Cr. Appeal No. 650 of 2012) passed by the Principal District & Sessions Judge, Seraikella-Kharsawan, Seraikella in Sessions Trial No. 90 of 2007 vide judgment of conviction and order of sentence dated 16th/17th May, 2012 for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof as the prosecution has failed to prove the offence of murder committed by Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari. Thus, Cr. Appeal (DB) No. 650 of 2012 is allowed. So far as appellant no. 1 namely Nizam Ansari @ Seikh Nizam in Cr. Appeal (DB) No. 662 of 2012 is concerned, the same is allowed and so far as appellant no. 2 namely Nasir Ansari @ Seikh Nasir in Cr. Appeal (DB) No. 662 of 2012 is concerned, the said appeal is partly allowed as his conviction is converted from Section 302 of the Indian Penal Code into Section 304 Part-II of the Indian Penal Code. As he has undergone his sentence, he is ordered to be released forthwith if not wanted in any other case. Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari are already on bail, they are discharged from their bail bonds. We also, hereby, quash and set aside the judgment of conviction and sentence passed by the Principal District & Sessions Judge, Seraikella-Kharsawan, Seraikella in Sessions Trial No. 90 of 2007 vide judgment of conviction and order of sentence dated 16th/17th May, 2012 under Section 341 of the Indian Penal Code to be read with Section 34 thereof so far as all the appellants are concerned as the prosecution has failed to prove the wrong I restraint of Abdul Mannan as the prosecution witnesses have failed to prove that they have wrongfully restrained Abdul Mannan. 8. Accordingly, Cr. Appeal (DB) No. 650 of 2012 is allowed and disposed of. So far as appellant no. 1 namely Nizam Ansari @ Seikh Nizam in Cr. Appeal (DB) No. 662 of 2012 is concerned, the same is allowed and disposed of and so far as appellant no. 2 namely Nasir Ansari @ Seikh Nasir in Cr. 8. Accordingly, Cr. Appeal (DB) No. 650 of 2012 is allowed and disposed of. So far as appellant no. 1 namely Nizam Ansari @ Seikh Nizam in Cr. Appeal (DB) No. 662 of 2012 is concerned, the same is allowed and disposed of and so far as appellant no. 2 namely Nasir Ansari @ Seikh Nasir in Cr. Appeal (DB) No. 662 of 2012 is concerned, the same is partly allowed.