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2018 DIGILAW 127 (JHR)

Naushad Ansari v. State of Jharkhand

2018-01-16

KAILASH PRASAD DEO

body2018
JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard learned counsel for the appellant and learned counsel for the State. The instant Criminal Appeal has been preferred against the judgment of conviction dated 24.9.2003 and order of sentence dated 25.9.2003 passed by Additional District & Session Judge, Dhanbad in Sessions Trial Case No. 640 of 1993 whereby the sole appellant Naushad Ansari has been convicted for offence committed u/ss. 109/307 and 307/34 I.P.C. and awarded rigorous imprisonment for five years for offence committed u/s. 307 I.P.C. but no separate sentence has been awarded for offence committed u/s. 109/307 I.P.C. 2. The prosecution case is based upon the fardbeyan of Rizwanul Haque (P.W. 3) recorded by S.I. Siraj Khan, Officer-in-charge of Topchanchi Police Station on 28.3.1988 at 22 hrs. in State Dispensary, Topchanchi, alleging inter alia that at around 9 P.M. informant Rafiq Ansari and Suleman Ansari (victim) were returning from the house of Rafiq Ansari after convening a panchayati. Suleman Ansari was ahead of the informant. After two minutes when the informant reached near the house of Safi Mian, the informant saw Nishar K. Ansari, son of Bali Md. and Naushad Ansari (appellant) son of late Yasin Ali. The accused were sitting near the door of Naushad Ansari, The informant has alleged that as soon as Suleman Ansari reached near the house of Naushad Ansari, Nishar Ansari and Naushad Ansari stand up and they started following Suleman Ansari. After 3-4 steps, Naushad shouted to fire at once, upon which Nishar Ansari took out his pistol from the shawl and fired upon Suleman Ansari on his back. At that time Nishar Ansari was at a distance of one and a half feet. Suleman said that Nisharwa and Naushadwa have killed him and fell on the ground and he started crying in pain. At the time of firing, Suleman was 10 feet ahead of the informant but the night was full moon night and the accused persons fled away towards the west. On alarm villagers assembled and Suleman Ansari was brought to Topchanchi Hospital. Informant has alleged that occurrence took place as father of Nishar and Suleman has some criminal litigation pending in the court and for this reason Nishar has fired upon Suleman from his pistol causing serious injury. 3. On alarm villagers assembled and Suleman Ansari was brought to Topchanchi Hospital. Informant has alleged that occurrence took place as father of Nishar and Suleman has some criminal litigation pending in the court and for this reason Nishar has fired upon Suleman from his pistol causing serious injury. 3. After investigation, the police submitted Charge-Sheet against both the named accused persons, Nishar Ansari and Naushad Ansari vide Charge-Sheet No. 67 dated 12.7.1988 u/ss. 326, 307, 109/34 I.P.C. and 27 of the Arms Act. That learned A.C.J.M., Dhanbad took cognizance of the offence vide order dated 18.7.1988 u/ss. 326/307/34 and 109 of the Indian Penal Code and 27 of the Arms Act and case has been transferred to the Court of learned Magistrate for commitment. On 14.12.1993, the case was committed to the court of sessions, and the charges has been framed against both accused u/ss. 109/307 and 307/34 on 15.5.1999 and Nishar Ansari has also been charged u/s. 27 of the Arms Act. Both the accused persons have pleaded not guilty and thus put up under trial. 4. That the prosecution has examined altogether eight witnesses to prove the case. Belal Ansari has been examined as P.W. 1 who came after hearing the sound of firing, he went to the place of occurrence and saw a number of persons. Suleman Ansari was fallen on the ground. He had a bleeding injury from his back. Suleman disclosed that Naushad and Nishar have fired upon him but could not disclose who has actually fired. This witness has further stated that Suleman was taken to the Sadar Hospital, Dhanbad, where doctor has taken out the cartridge and handed over to the police in a bottle. The seizure list was prepared and this witness has put his signature on the same which has been marked as Exht.-1. This witness has claimed to identify both the accused persons Md. Nishar and Naushad, who are co-villagers. This witness was cross-examined but nothing had been elicited by the defence to discard the prosecution case. The cross-examination was on the point of seizure of the fired cartridge and as such his cross-examination has no relevance for the present. 5. Suleman Ansari, victim of the case has been examined as P.W. 2. Nishar and Naushad, who are co-villagers. This witness was cross-examined but nothing had been elicited by the defence to discard the prosecution case. The cross-examination was on the point of seizure of the fired cartridge and as such his cross-examination has no relevance for the present. 5. Suleman Ansari, victim of the case has been examined as P.W. 2. This witness has stated that while he was returning from a panchayati and as soon as he crossed the door of Safi and reached near the house of Naushad, two persons stand up, one of the person having shawl and other person was Naushad. The person who was having shawl, he could not be identified by him and on the instruction of Naushad, the person who was having shawl took out his hand with pistol and fired on his back and because of that Suleman fell down. The witness has shown his injury on the back due to which he suffered paralysis. On raising alarm, co-villager Rizwanul Haque and Bilal and others came and they brought him to the hospital and subsequently he became unconscious and regained his consciousness at Sadar Hospital, Dhanbad. The witness has stated that he was treated for 14 to 25 days and thereafter referred to Vellore. This witness has identified Naushad who is present in the court but could not identify other accused person present in the dock. The other accused person who was present in the dock disclosed his name as Nishar Ansari. During cross-examination this witness has categorically stated that Nishar Ansari, who is present in the court has not fired upon him. This witness has admitted that he has some litigation with Bali Md. which is pending bearing the case No. S.T. 181 of 1987 and prior to this also Bali Md. has filed a criminal case against him. This witness has denied the suggestion that he has never said before the police that as soon as he reached near the house of Naushad, he saw Naushad Ansari and one person Nishar Ansari, sitting there rather he has said that a person having shawl stand up. This witness has stated that firing was made from the back and he fell on the ground. This witness has also denied that he never said before the police that he was shouting that Naushadwa and Nisharwa have fired upon him. This witness has stated that firing was made from the back and he fell on the ground. This witness has also denied that he never said before the police that he was shouting that Naushadwa and Nisharwa have fired upon him. This witness has said that after reaching 4 and 5 steps, he became unconscious, in which he has disclosed the name of Rizwanul Haque and Belal Ansari was the first who reached to the place of occurrence and thereafter this witness became unconscious and after 24 hours regained his consciousness. This witness has further stated that he has no quarrel or fight with Salim, Muslim, Haffaz Saroj, Saffi Mian whose house is situated near his house Rizwanul Haque, informant of the case has been examined as P.W. 3, this witness has supported the fardbeyan recorded by the police that on 28.3.1988 at 9.30 P.M. he was returning from a panchayati convened in front of the house of Ali Md. and Kurbaan where Suleman, Belai Ansari, Amanullah were there and after panchayati while he was returning, Suleman was at a distance of 30 to 40 steps ahead of him and he was following him. He was behind Suleman and since he reached near the house of Saffi Mian thereafter he heard Suleman started shouting but he could not saw who fired upon Suleman. This witness has further stated that Suleman was saying that Naushad has fired. This witness has proved his signature on the fardbeyan as Exhbt.-1/1. This witness during his cross-examination has stated that while he was returning to his house Naushad ordered to fire, upon which Nishar Ansari who was having a shawl took out his hand with pistol and fired upon the back of Suleman. This witness has further stated that Suleman disclosed that on order of Naushad, Nishar has fired. This witness has identified both the accused persons present in the dock as Naushad and Nishar. During cross-examination on behalf of Nishar, this witness has stated that Suleman has never said to him that Nishar, son of Bali Md. has fired upon him. He has not taken name of Nishar Ansari. No one nor this witness has taken the name of Nishar Ansari, son of Bali Ansari before the police and further said that Nishar has not fired upon Suleman. has fired upon him. He has not taken name of Nishar Ansari. No one nor this witness has taken the name of Nishar Ansari, son of Bali Ansari before the police and further said that Nishar has not fired upon Suleman. This witness has further stated that other several persons having name as Nishar Ansari are present in this village. The accused persons are residents of the same village and as such he is identifying them but the person present in the dock, Nishar has not fired upon him. This witness has further stated that police has not recorded his fardbeyan as per his statement which he has realized at the time of his deposition in the court. This witness has further stated that one fire was made upon which 40-50 persons assembled there. 6. Amanullah has been examined as P.W. 4, Bhagwan Das Chaurasia has been examined as P.W. 5 and both have been declared hostile by the prosecution. 7. Yunus Mian has been examined as P.W. 6. This witness has stated that Suleman was brought to the Sadar Hospital and the bloodstained shirt and baniyan was given by doctor to the police which was seized by the police and he put his signature on seizure list and has been marked as Exhibit.-1/1. This witness has stated during cross-examination that he put his signature not on a blank paper but on a paper without reading the same and he could not say that blood was of human or of some animal. 8. Dr. A.K. Sinha, has been examined as P.W. 7, He is the Medical Officer who examined Suleman Ansari on 28.3.1988 at 11.15 P.M. and found wound about:-- "(i) 1" x 1" in the vertebra with bleeding around the wound which was about 4" x 6" margin inverted. (ii) X-ray film shows that bullet was fired at T-6 to T-6 of vertebra with fracture of thoracic of vertebra. Bullet was removed." Age of injury was within six hours, grievous in nature and this witness proved the injury report in his signature and put in his handwriting which has been marked Exhibit-2. During cross-examination this witness has stated that he could not say that from what distance the firing was made nor the abstracted bullet is present before him, even he do not know the number and make of the bullet. 9. During cross-examination this witness has stated that he could not say that from what distance the firing was made nor the abstracted bullet is present before him, even he do not know the number and make of the bullet. 9. Ram Naresh Singh constable No. 252 has been examined as P.W. 8. He has proved the fardbeyan written by Siraj Khan and signature of the Officer-in-Charge Singh on the documents and marked the same as Exhibit-3 and the formal F.I.R. written by Siraj Khan and Sri Singh which has been marked Exhibit-4. The seizure-cum-production list written by Siraj Khan and signed by Sri Singh have been proved and marked the same as Exhibits.-5 and 5/1. During cross-examination this witness has stated that none of these papers have been written in presence of him. 10. After recording the statement of the appellant u/s. 313 Cr.P.C. the learned Trial Court has convicted the sole appellant (Naushad Ansari) u/ss. 109/307 and 307/34 I.P.C. and acquitted the co-accused Nishar Ansari by the same impugned judgment. 11. The learned counsel for the appellant, Mr. Rajesh Lata has submitted that Investigating Officer of this case has not been examined. The F.I.R. has been proved by a constable. Non-examination of the I.O. has caused serious prejudice to the appellant as he could not cross-examine him on the point that who has fired upon the victim, how he got knowledge about the case and the place and manner of the occurrence. The seized bullet has not been produced in the Court to ascertain as to whether the same bullet has caused injury to the victim Suleman Ansari or not. The learned counsel has vehemently argued that in the deposition of P.W. 2, victim (Suleman Ansari) particularly paragraphs 9 and 10, the presence of Naushad at the place of occurrence is also doubtful, as this witness has denied that he never said that as soon as he reached near the house of Naushad, he saw Naushad Ansari and Nishar Ansari sitting there rather he said that he has disclosed to the police that a person who was having a shawl was there. Further this witness has stated in paragraph 10 of his cross-examination that he has never said to the police that after sustaining the firearm injury, he shouted that Naushadwa and Nisharwa has shot him. Further this witness has stated in paragraph 10 of his cross-examination that he has never said to the police that after sustaining the firearm injury, he shouted that Naushadwa and Nisharwa has shot him. Thus, the presence of Naushad is also doubtful from the statement of the victim. The learned counsel for the appellant has further submitted that in the fardbeyan which was recorded on the statement of P.W. 3 Rizwanul Haque, the name of Naushad and Nishar was there but Nishar Ansari has been acquitted by the learned Trial Court on the ground that Suleman Ansari has not identified Nishar who was present in the dock, as to the person, who has fired upon him and on these ground, learned Trial Court has acquitted Nishar Ansari and as such the presence of Naushad Ansari is also doubtful and he may also be given the benefit of doubt. 12. Learned Additional Public Prosecutor, Mr. Abhay Tiwari has submitted that from the statement of P.W. 1 Belal Ansari, during examination-in-chief, he has submitted that Suleman has disclosed that Naushad and Nishar has fired upon him but could not disclose that who actually made firing. He has further submitted that P.W. 3 in his fardbeyan has categorically mentioned the name of Naushad and Nishar who was sitting near the house of Naushad and when the victim Suleman crossed that house, they have followed him and subsequently on the order of Naushad, Nishar has fired. 13. The submission made on behalf of learned Additional Public Prosecutor is not acceptable to this court, reason behind that is, as such P.W. 1 (Belal Ansari) in his examination-in-chief has submitted that Suleman has disclosed that Naushad and Nishar has fired upon him but this statement has not been supported by Suleman Ansari during his examination-in-chief particularly in paragraphs 9 and 10 as stated above. This statement of Belal Ansari is not acceptable in the eyes of law. Subsequently, the fardbeyan which has been marked as Exhibit-3 has been proved by a constable. Since the Investigating Officer has not been examined in this case and Rizwanul Haque during his cross-examination in paragraph 6 has stated that police has not recorded the fardbeyan as per his statement which he could realised today while deposing in the court. Subsequently, the fardbeyan which has been marked as Exhibit-3 has been proved by a constable. Since the Investigating Officer has not been examined in this case and Rizwanul Haque during his cross-examination in paragraph 6 has stated that police has not recorded the fardbeyan as per his statement which he could realised today while deposing in the court. As such putting reliance upon such fardbeyan which has not been proved either by the informant or by the investigating officer rather proved by a constable cannot be relied upon to convict a person, when other co-accused person has been acquitted by the learned Trial Court and the State has not preferred any Acquittal Appeal and said acquittal. 14. Considering the above facts and circumstances and after hearing the learned counsel for the appellant and learned counsel for the State and on perusal of the records, this court finds that the presence of Naushad is itself doubtful. The non-examination of the Investigating Officer has caused serious prejudice to the appellant and as such the benefit of doubt is given to Naushad Ansari also. 15. In the result, judgment of conviction dated 24.9.2003 and order of sentence dated 25.9.2003 passed by the Additional District & Sessions Judge-3rd at Dhanbad, in Sessions Trial Case No. 640 of 1993 arising out of Topchanchi Police Station Case No. 42 of 1988 arising out of G.R. No. 256 of 1988 is hereby set aside and the appellant is acquitted of the charges u/ss. 109/307 and 307/34 I.P.C. by giving benefit of doubt. Appellant is on bail hence, he is discharged from the liabilities of his bail bond. 16. Accordingly, the appeal is allowed and disposed of. Let the record be sent to the lower court at once.