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2018 DIGILAW 2653 (JHR)

Manir Ansari @ Maniruddin Ansari v. State of Jharkhand

2018-12-05

H.C.MISHRA, H.C.MISHRA, RATNAKER BHENGRA, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction and Order of sentence dated 22.05.2008, passed by the learned 1st Addl. Sessions Judge, Dhanbad, in S.T. Case No. 17 of 2007, whereby, the appellant along with other co-accused Yasin Mian, 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, both the convicts were sentenced to undergo R.I. for life, for the said offence. It may be stated that the co-accused Yasin Mian had also filed Cr. Appeal (DB) No. 902 of 2008, which stood abated, due to the death of the said co-accused. 3. The prosecution case was instituted on the basis of the written report submitted by the informant Md. Kalimuddin Ansari, son of the deceased Gulam Rashul Mian, at Tundi Police Station, within the District of Dhanbad, on 10.06.2006, wherein, it was stated that on the same date, the informant with his brother and father were working in their field, when at about 10:00 A.M., in the morning, the accused persons, namely, Manir Ansari, Gafur Ansari, Ainul Ansari, Sharif Ansari and Yasin Mian came there and they started quarreling with his father pressurizing him to change his evidence, which his father refused. It is alleged that thereafter the accused persons started assaulting his father and upon the order given by Gafur Ansari, the accused Manir Ansari assaulted his father by iron rod on his head, due to which his father fell down being injured. The informant and his brother fled away due to fear towards their village, raising alarm, and by the time they returned back to the field, his father was dead. There was bleeding injury on the head of his father. It is stated that on 20.07.1991, Amiruddin Ansari, the elder brother of the informant was murdered by the accused persons, and his father was an eye witness to that occurrence. As the trial was going on in the Court, upon the refusal of changing the evidence in that case, the occurrence had taken place. It is stated that on 20.07.1991, Amiruddin Ansari, the elder brother of the informant was murdered by the accused persons, and his father was an eye witness to that occurrence. As the trial was going on in the Court, upon the refusal of changing the evidence in that case, the occurrence had taken place. On the basis of the written report submitted by the informant, Tundi P.S. Case No.32 of 2006, corresponding to G.R. No. 1828 of 2006, was instituted against the accused persons for the offence under Sections 302/34 of the Indian Penal Code, and investigation was taken up. During investigation, the accused Manir Ansari and Yasin Mian were apprehended and the charge-sheet was submitted against them, showing the others to be absconders. 4. After commitment of the case to the Court of Session, charge was framed against both the accused persons for the offence under sections 302/34 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, seven witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-1 Md. Azad Ansari, has turned hostile and has not supported the prosecution case at all. 5. P.W.-4 Md. Kalimuddin Ansari is the informant of this case and son of the deceased. This witness, and his brother P.W.-2 Md. Taiyab Ansari, have fully supported the prosecution case as eye witnesses to the occurrence, stating that while they were working in the field, the accused persons came there, and upon the order given by Gafur Ansari, the accused Manir Ansari assaulted their father by iron rod on his head, due to which he died. Both these witnesses have also stated about the motive of the occurrence. The informant P.W.-4 Md. Kalimuddin Ansari has also proved his signature on the written report, which was marked as Ext.-1/2. They have also identified the accused in the Court. Though these witnesses were put to extensive cross-examination, but there is nothing of much importance therein, so far the allegation of assault against this appellant Manir Ansari, by iron rod on the head of the deceased is concerned. However, both these witnesses have stated in their cross-examinations, that they had seen this accused making only one assault. 6. Though these witnesses were put to extensive cross-examination, but there is nothing of much importance therein, so far the allegation of assault against this appellant Manir Ansari, by iron rod on the head of the deceased is concerned. However, both these witnesses have stated in their cross-examinations, that they had seen this accused making only one assault. 6. P.W.-3 Rafique Ansari and P.W.-7 Madina Bibi, the daughter-in-law of the deceased, are the hearsay witnesses to the occurrence. They were not present at the place of occurrence. They were informed about the occurrence. P.W.-3 Rafique Ansari is also a witness to the inquest report and he has proved his signature on the inquest report, which was marked as Ext.-1/1. 7. P.W.-5 Dr. Sailendra Kumar, had conducted the post-mortem examination on the dead body of the deceased on 11.06.2006, and had found the following ante-mortem injuries on the dead body:- Lacerated wound 1” x ½”x bone deep on the left side parietal region of head. On dissection:- Blood clots were found underneath of scalp all over on the back of head and on the left perieto temporal region of head. Continuous linear fracture were found on the both sides of occipital bone and on parietal bone, temporal bone and petrons bone on the left side of skull. Subdural haematoma were found defused all over surface of the brain on both sides. Heart, bladder were empty. Stomach contained about 40 gms of cooked rice. All internal organs were found in the state of softening. This witness has stated that death was due to the aforementioned head and brain injuries, caused by hard and blunt substance. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext.-2. 8. P.W.-6 Alexious Lakra is the Investigating Officer of the case. This witness has stated that on 10.06.2006 he was posted as Officer-Incharge of Tundi Police Station. On that day, Md. Kalimuddin Ansari submitted a written report, on the basis of which, police case was instituted. He has proved the endorsement on the written report, which was marked as Ext.-3. He has also proved the formal FIR, which was marked as Ext.-4. He has stated that he took up the charge of investigation and he prepared the inquest report of the dead body, which also he has proved, and the same was marked as Ext.-5. He has proved the endorsement on the written report, which was marked as Ext.-3. He has also proved the formal FIR, which was marked as Ext.-4. He has stated that he took up the charge of investigation and he prepared the inquest report of the dead body, which also he has proved, and the same was marked as Ext.-5. He inspected the place of occurrence, which is an agricultural field of the deceased Gulam Rashul, in which, the dead body was found with the injury on his head. He also found blood at the place of occurrence. He recorded the statements of the witnesses and after getting the post-mortem report and completing the investigation, he submitted the charge-sheet in the case. In his cross-examination, this witness has admitted that he had not seized the blood stained soil. He has also stated that he had not seen the record of the case about which, it is stated that the accused persons were pressurizing to change the evidence. He has denied the suggestion of making faulty investigation. 9. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, wherein, this appellant has denied the evidence against him. Two witnesses were examined on behalf of the defence, who are D.W.-1 Raj Kumar Hansda and D.W.-2 Rajesh Kr. Mandal, and these witnesses have stated that the informant Md. Kalimuddin Ansari was at the School on the date and time of occurrence. As such, these witnesses have been examined only to show that the informant was not an eye witness to the occurrence. 10. On the basis of the evidence on record, the appellant and the co-accused have been convicted and sentenced for the offence as aforesaid. 11. Though the learned counsel for the appellant has challenged the veracity of the witnesses supporting the prosecution case, but he has very fairly confined his arguments submitting that even if the statements of the eyewitnesses, namely, P.W.-2 Md. Taiyab Ansari and P.W.-4 Md. Kalimuddin Ansari, the informant, are taken to be correct, there is allegation of giving only one blow by iron rod on the head of the deceased. Even the evidence of P.W.-5 Dr. Sailendra Kumar, and the post-mortem report proved by him as Ext.-2, clearly show that there was only one lacerated wound on the head of the deceased. Kalimuddin Ansari, the informant, are taken to be correct, there is allegation of giving only one blow by iron rod on the head of the deceased. Even the evidence of P.W.-5 Dr. Sailendra Kumar, and the post-mortem report proved by him as Ext.-2, clearly show that there was only one lacerated wound on the head of the deceased. It is submitted that since there was no repetition of blow, it cannot be said that the present accused-appellant had assaulted the deceased with the intention to cause his death, and in that view of the matter, the offence, if any, shall be made out only under Section 304 Part-II of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. It is submitted by the learned counsel for the appellant that the appellant was remanded in this case on 27.08.2006, and has throughout remained in custody for more than twelve years, and has been sufficiently punished for the said offence. 12. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that there is specific allegation against this appellant to have assaulted the deceased by iron rod on his head, causing his death at the spot, and in that view of the matter, the offence is clearly made out against the appellant under Section 302 of the Indian Penal Code. As such, there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the record, we find that in the evidence of both the eyewitnesses, i.e., the informant P.W.-4 Md. Kalimuddin Ansari and his brother P.W.-2 Md. Taiyab Ansari, there is allegation of giving only one blow of iron rod upon the head of the deceased by this accused. Admittedly, there was no repetition of the blow, and the evidence of P.W.-5 Dr. Sailendra Kumar, as also the post-mortem report proved by him as Ext.-2, clearly show that there was only one bleeding injury on the head of the deceased, and there was no other external injury on the dead body, though the said injury had caused the fracture of the skull bone and the subdural haematoma, which was the cause of death of the deceased. Though it is alleged that the occurrence had taken place upon refusal by the deceased for changing the evidence in the murder case of the elder brother of the informant, but the Investigating Officer, P.W.-6 Alexious Lakra, has clearly admitted in his cross-examination, that he had not seen the records of that murder case. Even the prosecution has not proved the FIR of any such murder case. 14. We are of the considered view that since there is no allegation of repetition of blow upon the deceased, in the facts of this case, the prosecution has failed to prove beyond all reasonable doubts that the assault was made on the deceased with the intention to cause his death, and as such, the offence is made out only under Section 304 Part-II of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. As such, the conviction of the appellant for the offence under Section 302 of the Indian Penal Code, cannot be sustained in the eyes of law. Since the appellant has remained in custody for more than twelve years, even if the appellant is sentenced for the maximum sentence for the offence under Section 304 Part-II of the Indian Penal Code, he has already served the sentence for more than the maximum sentence of ten years prescribed for the said offence. 15. For the foregoing reasons, the impugned Judgement of conviction dated 22.05.2008, passed by the learned 1st Addl. Sessions Judge, Dhanbad, in S.T. Case No. 17 of 2007, is hereby, modified to the extent that the appellant Manir Ansari @ Maniruddin Ansari is convicted for the offence under Section 304 Part-II of the Indian Penal Code, instead of the offence under Sections 302/34 of the Indian Penal Code. The Order of sentence dated 22.05.2008 is also set aside and the appellant is sentenced to R.I. for ten years for the offence under Section 304 Part-II of the Indian Penal Code. Since the appellant Manir Ansari @ Maniruddin Ansari has already undergone R.I. for more than the period of ten years, he is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 16. This appeal is accordingly, dismissed with the modification in the Judgment of conviction and Order of sentence, as aforesaid. 17. 16. This appeal is accordingly, dismissed with the modification in the Judgment of conviction and Order of sentence, as aforesaid. 17. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.