Partly allowed

Ahmad Mian And Ors. v. State of Jharkhand

Jharkhand HC4 Sept 2018Cr.A(SJ)/1169/2005

Case brief

AI extract

What is this about?

High Court of Jharkhand appealed a conviction underSections 147 and 323 IPC for village affray. Bench noted existence of a counter-case where prosecution parties were convicted and appellants were aggressors but failed to join trials. Bench modified sentence from six months imprisonment to execution of bond under Probation of Offender Act.

What did the court decide?

Conviction upheld but sentence modified from six months imprisonment to execution of bond of Rs. 2000 for six months under Section 4(1) of the Probation of Offender Act.

Ahmad Mian And Ors. Vs State of Jharkhand — Cheating and Forgery | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (S.J.) No. 1169 of 2005

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…..

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(Against the judgment of conviction and order of sentence, both dated 10.08.2005, passed by learned Additional Sessions Judge-IV, Jamtara, in Sessions Case No.28 of 1996).

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Ahmad Mian,

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Rahman Mian, both son of Siddique Mian

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Noor Md. Mian S/o Fagu Mian

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Judan Mian, S/o Noor Muhammad

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Lukman Mian, S/o Gujar Mian

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Imtiaz Mian @ Intaj Ansari, S/o Islam Mian

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Jalal Mian @ Md. Jalal, S/o Late Asho Mian All are resident of Village-Palta, P.S.-Narayanpur, District-Jamtara ….. Appellants

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Versus The State of Jharkhand …. Respondent

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PRESENT

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HON’BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Appellants :Mr. Rajiv Lochan, Advocate For the State :Mr. Hardeo Prasad Singh, Additional Public Prosecutor

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By Court:- Heard, learned counsel for the appellants, Mr. Rajiv Lochan, Advocate and Mr. Hardeo Prasad Singh, Additional Public Prosecutor appearing for the State.

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2. The instant criminal appeal is directed against the judgment of conviction and order of sentence, both dated 10.08.2005, passed by learned Additional Sessions Judge-IV, Jamtara, in Sessions Case No. 28 of 1996, whereby all the seven appellants have been convicted for offence committed and punishable under Sections 147 and 323 of the Indian Penal Code and awarded sentence of simple imprisonment for six months each for the offence committed and punishable under Section 147 and simple imprisonment for six months each for the offence committed and punishable under Section 323 of the Indian Penal Code and both the sentences are directed to run concurrently.

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3. The prosecution case is based upon written report of Sirajuddin Mian (P.W.-5), before the officer-in-charge, Narayanpur police station, wherein the

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informant has alleged, that on 27.11.1994 at around 7:00 A.M. the co-villagers namely, Ahmed Mian, Rahman Mian, Noor Mohamad, Judan Mian, Lukman Mian, Imtiyaz Miyan and Jalal Mian started construction of wall. The informant made a protest, thereupon Noor Mohamad Mian (appellant no.3) assaulted the informant on his head by means of lathi causing bleeding injury. On brawl raised by the informant, Rafique, son of informant, came, who was also assaulted by the Judan Miyan (appellant no.4) by means of tangi from the sharp side, near the ear causing bleeding injury. Subsequently, other two sons of the informant namely, Hasim and Kasim came for rescue, but they were also assaulted by means of lathi and sawal, causing bleeding injury on the head. In the mean time, co-villagers namely, Jafar Mian, Mustakin Mian, Khalifa Mian etc. came and thereafter the accused persons fled away towards their house. The informant has alleged that after forming an unlawful assembly having common intention the accused persons have assaulted him by means of tangi, lathi and sawal with intention to kill him.

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4. On the basis of written report, police registered Narayanpur (Jamtara) P.S. Case No.93 of 1994, dated 27.11.1994, under Sections 147, 447, 323, 324 and 307 of the Indian Penal Code.

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5. After investigation, the police submitted final report vide charge sheet no.25 of 1995, dated 30.03.1995, under Sections 147, 447, 323, 307 and 337 of the Indian Penal Code, against all the accused persons.

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The cognizance of the offence has been taken vide order dated 19.04.1995 and the case has been committed to the court of sessions vide order dated 16.08.1995.

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6. The charge has been framed against the appellants under Sections 323, 147 307, 337 and 447 of the Indian Penal Code, on 20.06.2001, to which the accused persons have pleaded their innocence and thus, they were put under trial.

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7. The prosecution, to prove its case, has examined altogether five witnesses and also adduced documentary evidences.

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P.W.-1 is Md. Khalifa, P.W.-2 is Md. Kasim, son of the informant, P.W.-3 is Rafique Mian, another son of the informant, P.W.-4 is Hasim Mian, also son of the informant and P.W.-5 is Sirajuddin Mian, informant and injured of the case.

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Signature of the informant on the first information report, has been proved and marked as Exhibit-1. The defence has not examined any witnesses but has filed a certified copy of the judgment in T.R. Case No. 81 of 2001, arising out of P.C.R. Case No.383 of 1994, dated 12.07.2001, which has been proved and marked as exhibit-A without objection.

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8. After closure of the prosecution evidence, the statement of the appellants/accused persons have been recorded under section 313 Cr.P.C., on 18.07.2005, to which they pleaded, that false allegation has been levelled against them and they are innocent.

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9. After hearing the learned counsel for the parties and from the material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against these appellants/accused persons namely, Ahmad Mian, Rahman Mian, Noor Md. Mian, Judan Mian, Lukman Mian, Imtiaz Mian @ Intaj Ansari and Jalal Mian @ Md. Jalal, convicting them under Sections 147 & 323 of the Indian Penal Code.

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Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the instant criminal appeal before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence.

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10. Heard, learned counsel for the appellants Mr. Rajiv Lochan, Advocate. Learned counsel for the appellants has submitted, that the impugned

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judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that from perusal of exhibit-A, it is apparent that there is a case and counter case between the parties for construction of wall and the occurrence took place on 27.11.1994, both the sides have filed a case and counter case against each other. In the counter case, filed by the appellant, Ahmad Mian, the prosecution party being the accused of that case have been convicted by the learned Magistrate under Section 323 of the Indian Penal Code. Learned counsel for the appellants has further submitted, that the investigating officer and doctor has not been examined in this case nor any independent witnesses have been examined, rather all the witnesses examined in this case on behalf of the prosecution are relative of the informant and are injured witness of the case, but no injury reports have been brought on record but even then the learned trial court has convicted the appellants under Sections 147 and 323 of the Indian Penal Code. Learned counsel for the appellants has further submitted, that there is contradiction in the evidence of the prosecution witnesses. Informant, Sirajuddin Mian has been examined as P.W.-5, his sons namely, Md. Kasim has been examined as P.W.-2, Rafique Mian has been examined as P.W.-3 and Hasim Mian has been examined as P.W.-4. Learned counsel for the appellants has further submitted, that Md. Kasim P.W.-2 has admitted during his cross-examination in paragraph 2 that Ahmad Mian has also filed a case against them, in which they have been convicted. Learned counsel for the appellants has further submitted, that there is a case and counter case between the parties as admitted by P.W.-2, Md. Kasim and as such both the cases ought to have been tried together in view of the judgment as reported in 2003 (9) SCC 426 in the case of State of Madhya Pradesh Versus Mishrilal (Dead) & Ors. and 1990 (Supp) SCC 145 in the case of Nathi Lal Versus State of Uttar

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Pradesh .

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Since both the cases have not been tried together and as such the case learned trial courts, have convicted both the sides in both the cases without ascertaining the fact that who is the aggressor of the occurrence. Learned counsel for the appellants has further submitted, that in view of the same the appellants may be acquitted of the charge and conviction under Sections 147 and 323 of the Indian Penal Code as in the counter case filed by these appellants, the accused persons have already been held guilty as stated by P.W.-2, Md. Kasim. Learned counsel for the appellants has further submitted, that the matter relates to the construction of wall, which took place in the year, 1994 and since 1994, these appellants are facing the rigour of the trial, which is approximately, 24 years.

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11 . Heard, Mr. Hardeo Prasad Singh, learned Additional Public Prosecutor appearing on behalf of the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and the learned trial Court has rightly convicted the appellants under Sections 147 and 323 of the Indian Penal Code. Learned counsel for the State has further submitted, that all the four injured persons have supported the prosecution case and the learned trial court has rightly convicted the appellants on the basis of the material available on record. Learned counsel for the State has further submitted, that the nonexamination of the doctor and investigating officer has not caused any prejudice to the appellants and the appellants have rightly been convicted under Sections 147 and 323 of the Indian Penal Code, as prosecution party have sustained injuries on the head and vital parts of the body. Learned counsel for the State has further submitted, that this Court may not interfere with the impugned judgment of conviction and order of sentence at this stage

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as the same is based on the evidence brought on record.

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12 . Heard, learned counsel for the appellants Mr. Rajiv Lochan, Advocate and Mr. Hardeo Prasad Singh, learned Additional Public Prosecutor appearing for the State and perused the record i.e. written report, charge framed, evidence of five prosecution witnesses, exhibits and the statement of the appellants recorded under Section 313 Cr.P.C. and the defence exhibit, which has been proved and marked as exhibit-A without objection. This court has scrutinized the evidence, from which it appears that on the alleged date of occurrence i.e. 27.11.1994, two cases have been instituted by the prosecution and defence against each other for free fight between them with respect to the construction of wall and both the sides have sustained injury. In the counter case filed by the appellants, informant and others of the present case are the accused, who have been convicted by the learned trial court as admitted by the Md. Kasim (P.W.-2) during his cross-examination. The investigating officer of the case has not been examined and as such the appellants have been seriously prejudiced, as no opportunity has been given to the appellants to prove that the prosecution party, who have been convicted in the counter case are the aggressor of the occurrence by cross-examining the I.O. From perusal of the record it appears that, learned trial court has taken note of non-examination of doctor and the investigating officer and as such appellants have been convicted for offence committed and punishable under Sections 147 and 323 of the Indian Penal Code and awarded sentence of simple imprisonment for six months under both the heads separately, which have been directed to the run concurrently.

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13 . The learned trial court has rightly convicted the appellants under sections 147 and 323 of the Indian Penal Code but the sentence awarded by the learned trial court ought to be considered that, both prosecution and defence are co-

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villagers and neighbour and for a very petty issue. In the counter case filed by the appellants, the present prosecution parties have been convicted under Section 323 of the Indian Penal Code and they have been released on execution of bond of Rs.2000/- for one year under Section 4(1) of the Probation of the Offender Act, as such this Court is also modifying the sentence of simple imprisonment for six months by directing the appellants to execute a bond of Rs.2000/- for six months under Section 4(1) of the Probation of Offender Act, considering the rigor of trial for 24 years.

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14. The appellants, who are on bail, their bail bonds are hereby cancelled to execute the bond of Rs.2000/- for six months under Section 4(1) of the Probation of Offender Act.

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15. In the result, the instant criminal appeal is dismissed with modification in sentence.

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16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi Dated the 04.09.2018 R.S./-

Ahmad Mian And Ors. v. State of Jharkhand

Case brief

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Ahmad Mian And Ors. v. State of Jharkhand

Case brief

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