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2018 DIGILAW 1970 (JHR)

Md. Irfan @ Dablu v. State of Jharkhand

2018-08-28

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Heard learned senior counsel for the appellant and learned counsel for the State, as also learned senior counsel for the informant. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 15th February, 2007 and Order of sentence dated 17th February, 2007, passed by the learned Sessions Judge, Hazaribag, in S.T. No. 179 of 2004, whereby, the present appellant, who was facing trial along with four other co-accused persons, has been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life, and fine of Rs.15000/-, for the said offence. 3. It may be stated that out of five accused persons undergoing the trial, three accused persons have been acquitted by the Trial Court, and one co-accused has been convicted and sentenced for the offence under Section 302 of the Indian Penal Code, who has filed a separate appeal, which shall be dealt with separately. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Md. Shamsher Alam, the brother of the deceased, Naushand @ Rinku, wherein, he has alleged that on 13.06.2003 at about 03:30 P.M. there was an altercation between the present accused and the deceased which was pacified. Again at about 04:30 P.M., the present accused along with his father and other brothers took up a quarrel with the deceased, but the same was also averted. It is alleged that the accused had threatened the deceased to take the revenge in the night. It is alleged that in the night at about 10:30 P.M., the co-accused Imtiyaz, who is the brother of this accused, came at the hotel of the informant and asked one staff about the deceased. In the meantime his brother came there and Imtiyaz chased him with a bhujali, and at a distance of about 10 to 20 yards, near a Petrol Pump, the present accused Irfan apprehended Rinku and Imtiyaz assaulted him by bhujali repeatedly, due to which he was badly injured and fell down. His brother was brought to hospital, where he was declared dead. His brother was brought to hospital, where he was declared dead. On the basis of the fardbeyan of the informant, Hazaribag Sadar P.S. Case No. 243 of 2003, corresponding to G.R. No. 1397 of 2003, was instituted for the offences under Sections 302 and 120-B/34 of the Indian Penal Code, against five accused persons, including the present appellant, and investigation was taken up. 5. After investigation, the police submitted the charge-sheet only against the co-accused Md. Imtiyaz. The appellant and other accused persons were not sent up for trial. It appears from the impugned Judgment that after the evidence of ten witnesses, the other accused persons were summoned to face the trial under Section 319 of the Cr.P.C., and fresh charge was framed against the accused persons, including this appellant, for the offences under Sections 302/34 and 120-B of the Indian Penal Code, and upon the accuseds’ pleading not guilty and claiming to be tried, they were put to trial. 6. We find from the record that in course of trial, before the framing of charge against this appellant, ten witnesses were examined by the prosecution, who were, P.W.-1 Shaukat Ali, the father of the deceased, P.W.-2 Shabra Khatoon, the mother of the deceased, P.W.-3 Shamsheri Begum, the sister of the deceased, P.W.-6 Md. Shamsher Alam @ Tinku, the informant and the brother of the deceased, and they had supported the case as eye witnesses to the occurrence, being the family members of the deceased. Two more witnesses, P.W.-5 Munna Ejaj and P.W.-8 Deep Ranjan had also supported the case as eye witnesses to the occurrence. P.W.-4 Md. Sirajul Islam, a hearsay witness, P.W.-9 Abdul Rajjaque and P.W.-10 Md. Jamaluddin, the seizure list witnesses, had not stated anything about the occurrence. P.W.-7 Dr. Rajesh Kumar, had conducted the post-mortem examination on the dead body of the deceased. After examination of these witnesses, the charge was framed against the present accused and he was put to trial and these witnesses were recalled, out of whom P.W.-1 Shaukat Ali, P.W.-2 Shabra Khatoon, P.W.-3 Shamsheri Begum, P.W.-4 Md. Sirajul Islam, P.W.-5 Munna Ejaj and P.W.-6 Md. Rajesh Kumar, had conducted the post-mortem examination on the dead body of the deceased. After examination of these witnesses, the charge was framed against the present accused and he was put to trial and these witnesses were recalled, out of whom P.W.-1 Shaukat Ali, P.W.-2 Shabra Khatoon, P.W.-3 Shamsheri Begum, P.W.-4 Md. Sirajul Islam, P.W.-5 Munna Ejaj and P.W.-6 Md. Shamsher Alam @ Tinku, were examined on recall, but upon recall, the material witnesses stated nothing about the occurrence, except stating that their evidence was recorded earlier, and they had identified the accused persons in the Court and they were only put to cross-examination by the accused persons. 7. Thus, from the evidence on record, it is apparent that none of the material witnesses were examined afresh in presence of the present accused. Even P.W.-7 Dr. Rajesh Kumar, who had conducted the post-mortem examination on the dead body of the deceased, was not examined on recall. P.W.-11 Sanjeev Kumar Das is a Judicial Magistrate, who had recorded the statement of one Md. Ziyaul Hassan under Section 164 of the Cr.P.C., which was marked Ext.4, and P.W.-12 Satyadeo Singh is the I.O. of the case, who has stated about the investigation made by him and proved the necessary documents. This witness has admitted in his cross-examination that he had submitted the charge-sheet only against the co-accused Imtiyaz and had not found any evidence against the other accused persons. 8. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein this accused has denied the evidence against him. Two witnesses were also examined by the defence, who are not relevant for the purposes of the present accused, rather, they are relevant for the purposes of other co-accused convicted in the case. 9. In the facts of this case, we find that none of the material witnesses who were examined by the prosecution, has deposed anything about the occurrence in presence of the present accused, and as such, their evidence cannot be taken against this accused. We find that the conviction and sentence of the appellant Md. Irfan @ Dablu, has been based by the Trial Court below only on the evidence recorded behind his back, which is absolutely illegal. As such the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 10. We find that the conviction and sentence of the appellant Md. Irfan @ Dablu, has been based by the Trial Court below only on the evidence recorded behind his back, which is absolutely illegal. As such the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 10. For the foregoing reasons, the impugned Judgment of conviction dated 15th February, 2007 and Order of sentence dated 17th February, 2007, passed by the learned Sessions Judge, Hazaribag, in S.T. No. 179 of 2004, so far as it relates to the conviction and sentence for the offence under Sections 302/34 of the Indian Penal Code, of the present appellant Md. Irfan @ Dablu, are hereby, set aside. Consequently, Md. Irfan @ Dablu is found not guilty and he is acquitted of the charge. The appellant is in custody undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 11. It is made clear that we are not expressing any view about the conviction and the sentence of the co-accused recorded by the Court below on the basis of the evidence of the witnesses examined in his presence, which shall be dealt with separately, in the appeal filed by the said co-accused. 12. This appeal is accordingly, allowed. Let a copy of this Judgment be sent to the Court concerned forthwith. Appeal allowed.