Dismissed

Salim Ansari Alias MD Salim Mistri and Ors. v. State of Jharkhand

Jharkhand HC2 Sept 2021Cr.Rev./450/2012

Case brief

AI extract

What is this about?

The High Court dismissed two criminal revision petitions challenging convictions for affray and intentional injury. The bench found no perversity in the lower courts' appreciation of evidence, including injured witness testimony and expert medical reports, and declined to interfere with the impulse to deny probation due to prior convictions.

What did the court decide?

Both criminal revision petitions Cr. Rev. No. 450/2012 and Cr. Rev. No. 453/2012 were dismissed; bail bonds were cancelled.

Salim Ansari Alias MD Salim Mistri and Ors. Vs… — Criminal Trial and Appeal | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Rev. No. 450 of 2012

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Salim Mistri @ Md. Salim Mistri, S/o Late Abbas Miyan

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Samim Mistry @ Md. Samim Mistry, S/o Late Abbas Miyan

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Sabir Tailor, S/o Late Abbas Miyan [deleted v/o dated 02.09.2021]

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Mithu Mistry, S/o Late Md. Siddique

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Md. Laddu, S/o Samim Mistri

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Md. Firoj, S/o Samim Mistry

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Chunna Miyan @ Chunnu Miyan, S/o Sabbir Tailor

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Md. Rahman, S/o Late Yakub Miyan [deleted v/o dated 02.09.2021]

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All are Resident of Village- Baganpara,

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P.O.- Pakur, P.S. –Pakur (T),

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District- Pakur (Jharkhand) … … Petitioners

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-Versus-

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The State of Jharkhand … … Opp. Party

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With

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Cr. Rev. No. 453 of 2012

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Md. Azad @ Azad @ Azad Mistry Son of Md. Ramzan

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Saiyad Mistry, Son of Jahur Mian

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Siraj Mistri, Son of Jahur Miyan

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Md. Salim @ Md. Salim Ansari, Son of Jahur Mian All resident of Village- Bagan Para, P.O.- Pakur, P.S. –Pakur (T),

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District- Pakur (Jharkhand)

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… … Petitioners

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-Versus-

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The State of Jharkhand … … Opp. Party

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner s : Mrs. Nitu Sinha, Advocate (In both cases) For the Informant : Mr. Rajeeva Sharma, Senior Advocate Mr. Ritesh Kumar, Advocate For the State : Mr. Shailesh Kumar Sinha, A.P.P. (In Cr. Rev. No. 450/2012) Mr. Sanjay Kumar Srivastava, A.P.P. (In Cr. Rev. No. 453/2012)

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Through Video Conferencing

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07/02.09.2021 Heard Mrs. Nitu Sinha, the learned counsel appearing on behalf of the petitioners in both the cases.

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2. Heard Mr. Rajeeva Sharma, the learned Senior counsel alongwith Mr. Ritesh Kumar, Advocate appearing on behalf of the Informant in both the cases.

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3. Heard Mr. Sanjay Kumar Srivastava, A.P.P. and Mr. Shailesh Kumar Sinha, A.P.P. appearing on behalf of the Opposite Party-State.

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4. A counter-affidavit has been filed in the present case pursuant to the last order wherein it has been indicated that petitioner no. 3 and petitioner no. 8 in Cr. Rev. No. 450 of 2012 have expired.

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5. From the perusal of the impugned order, it appears that no fine amount as such has been imposed.

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6. Accordingly, Cr. Rev. No. 450 of 2012 filed by petitioner no. 3 - Sabir Tailor and petitioner no. 8 - Md. Rahman is treated as abated.

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7. Office is directed to delete the name of the petitioner nos. 3 and 8 in red ink from the cause-title.

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8. Both the criminal revision petitions are directed against the Judgment dated 02.06.2012 passed by the learned Additional Sessions Judge-I, Pakur in Criminal Appeal No. 27/2009 whereby and whereunder the appellate court affirmed the Judgment of conviction and the order of sentence dated 10.06.2009 passed by the learned S.D.J.M., Pakur in G.R. No. 305 of 2001 / T.R. No. 04 of 2009 [arising out of Pakur (T) P.S. Case No. 153/2001 dated 15.07.2001] and dismissed the criminal appeal.

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9. The learned trial court had convicted all the 12 petitioners and one Md. Ramjan S/o Late Yakub Miyan for the offences under Sections 147, 148, 323/149 of the Indian Penal Code and had sentenced them to undergo Rigorous Imprisonment for one

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year under Section 147 of the Indian Penal Code, Rigorous Imprisonment for one year under Section 148 of the Indian Penal Code and Rigorous Imprisonment for one year under Section 323/149 of the Indian Penal Code and all the sentences were directed to run concurrently.

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Arguments on behalf of the petitioners

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10. The learned counsel for the petitioners submitted that the petitioners have been wrongly convicted by the learned courts below and the impugned judgment is ex-facie perverse. She submitted that one of the basic ingredients of the offence under Section 149 of the Indian Penal Code is not attracted in the present case as the total number of persons being three i.e. less than five. She referred to the evidence of P.W.-5 who has been shown as an independent witness and submitted that he has identified only two persons. However, during the course of arguments, it was not disputed that this particular witness has not stated about total number of persons involved in the commission of the offences. She also referred to the evidence of P.W.-6 and submitted that this witness has stated that the accused had assaulted the victims by rod. She further submitted that it was alleged that two accused persons were armed with pistol, but the injury was found to be that of rod and hard and blunt substance. She submitted that there are material discrepancies in the evidence of the prosecution witnesses and accordingly, the conviction of the petitioners for the alleged offences cannot be sustained in the eyes of law. She further submitted that although Investigating Officer of the case has been examined, but the evidences of P.Ws. -6 to 8 were not recorded by him in the case diary and accordingly, their evidences cannot be taken into consideration. However, she did

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not dispute the fact that P.Ws. -6 to 8 are injured witnesses of the case.

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11. The learned counsel for the petitioners further submitted that the occurrence is of the year 2001 and more than 20 years have elapsed from the date of incident and the petitioners have faced the criminal case for a long period. She submitted that there is no minimum sentence as such prescribed under the sections in which the petitioners have been convicted and accordingly, in spite of their previous conviction as per Exhibit18, a sympathetic view may be taken while considering the sentences of the petitioners.

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Arguments on behalf of the Opposite Parties

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12. Learned Senior counsel appearing on behalf of the informant submitted that there are other witnesses also who have taken the names of various accused persons and P.W.-1 and P.W.-6 are amongst them. He submitted that the doctor who had examined the victims after the incident has also been examined and the prosecution case has been fully established by the consistent evidence of the prosecution witnesses who have supported the prosecution case.

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13. Learned counsel appearing on behalf of the Opposite Party-State as well as informant opposed the prayer of the petitioners and submitted that there are concurrent findings recorded by the learned courts below which have been fully supported by the materials on record as well as evidence of doctor and the victims of the case and there is no illegality or perversity in the impugned judgments of conviction. He further submitted that it is not in dispute that statement of the informant of the case was duly recorded by the Investigating Officer of the case.

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14. Learned Senior counsel for the informant further submitted that the basic ingredients for offence under Section 149 of the Indian Penal Code are fully satisfied in the present case and ingredients of the other offences are also satisfied and therefore, the present revision is fit to be dismissed. He also referred to the judgment passed by the learned trial court who at the time of passing the sentence has categorically stated that the convicts were earlier convicted in another case for which Exhibit-18 has been filed before the learned trial court. Accordingly, the learned trial court refused to extend the benefit of Probation of Offenders Act to the petitioners. Learned Senior counsel submitted that in view of the fact that the petitioners were convicted earlier, no sympathetic view may be taken so far as sentences of the petitioners are concerned.

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Findings of this Court

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15. As per the prosecution case, on 15.07.2001 at 09:00 A.M., the Informant namely, Md. Hasim Khan alongwith his brothers Md. Nasim Khan, Md. Mukhtar Khan, Md. Samsad Khan and his father Md. Nayeem Khan were getting their house constructed by labourers in Daag No. 1582/2794 situated in Mouza- Pakur, Mohalla- Baganpara and at that time, the petitioners alongwith 7-8 unknown persons came there. Salim Mistri and Azad were armed with pistols. Samim Mistry and Munna were armed with bhalas and the unknown persons were armed with pistol, rod and lathi. They abused the informant, his brother and his father. Salim Mistri asked the informant as to who lodged a case against them and Rehman demanded cash for permission of construction. Thereafter, the accused persons started assaulting the informant, his father and brothers and also assaulted the mason and labourers. Due to intervention of the local people, the lives of informant and

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others could be saved. The accused persons took away 07 bags of cement and demanded Rs.1,00,000/- and threatened not to allow construction. It was further stated that 05 months ago also, the accused persons had committed similar offence and the Informant had lodged Pakur P.S. Case No. 40/2001 against them.

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16. On the basis of the written report, Pakur (T) P.S. Case No. 153/2001 dated 15.07.2001 under Sections 147, 148, 149, 323 of the Indian Penal Code was registered. After completion of investigation, the investigating Officer submitted charge-sheet against the petitioners and cognizance of the offence was taken on 25.01.2002. On 17.05.2002, charges were framed against the accused persons under Sections 147, 148, 149, 323 of the Indian Penal Code which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 17. In course of trial, the prosecution examined altogether 08 witnesses. P.W.-1 is Md. Hasim Khan who is the Informant of the case, P.W.-2 is Md. Nabi who has been declared hostile, P.W.-3 is Dr. Suresh Chandra Sharma, P.W.-4 is S.I. Kameshwar Mishra who is the investigating officer of the case, P.W.-5 is Ratan Kumar Das, P.W.-6 is Nasim Khan, P.W.-7 is Md. Mukhtar Khan and P.W.-8 is Md. Nayeem Khan. The prosecution exhibited several documents including the written report as Exhibit-1, injury reports as Exhibits- 2, 2/1, 3, 3/1, 4, 4/1, formal F.I.R. as Exhibit-5, certified copy of F.I.R. of Pakur (T) P.S. Case No. 40/2001 as Exhibit-6, certified copy of deed as Exhibit-7, certified copy of Judgment passed in G.R. 306/2001 as Exhibit-17 and certified copy of Judgment passed in G.R. 67/2001 as Exhibit-18.

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18. On 28.02.2006, the petitioners were examined under Section 313 of Cr. P.C. wherein they denied the incriminating evidences put to them and claimed to be innocent. The

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petitioners exhibited certified copy of order dated 04.03.2002 in P.C.R. Case No. 257/2001 as Exhibit-A and certified copy of Complaint Petition in P.C.R. Case No. 257/2001 as well as certified copy of the parcha were also exhibited.

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19. Learned trial court considered the oral and documentary evidences available on record and recorded its findings in Para21 which reads as under:

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“ 21. P.W. 1, P.W. 6, P.W.-7, P.W.-8 are the injured and from the statement of P.W.-3 and from injuries report Ext.-2, 2/1, Ext. 3 to 3/1, Ext.-4, Ext.-4/1, injuries on P.W.-6, P.W.-7 and P.W.-8 have been corroborated and also it has come from the statement of these witnesses that accused person were in unlawful with deadly weapons and assaulted the informant side and from the statement of the P.W.-4 (I.O.), the place of occurrence has been established. Hence from the above facts prosecution has been able to prove the charges of offence u/s 147, 148, 323/149 of the I.P.C. against the accused persons.”

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20. The learned appellate court also considered the materials on record and recorded its finding at Para-6 that it is a case under Section 323 of the Indian Penal Code wherein the number of miscreants assembled unlawfully at the place of occurrence and assaulted the informant and his family members, but no fire-arm was used and the injuries were caused by lathi or iron rod. The prosecution witnesses have supported the prosecution case and there is no ambiguity or contradiction in their statements on the points of day, time and manner of occurrence. The learned appellate court affirmed the conviction of the petitioners under Sections 147, 148, 323/149 of the Indian Penal Code and maintained sentences passed by the learned trial court.

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21. After hearing the learned counsel for the parties and perusal of the materials on record, this Court finds that P.W.-1

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is the Informant and an injured victim of the case. He named the accused persons and deposed that the accused persons came with pistol, rod and lathi and assaulted him, his father and brothers namely, Nasim, Mukhtar and Samsad and all the accused persons together assaulted and caused hurt on his both hands, back and left leg. He received treatment from private doctor and the other persons received treatment in Government Hospital.

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22. This Court further finds that P.W.-6, P.W.-7 and P.W.-8 are also the injured witnesses of the case and they have fully supported and corroborated the evidence of the informant. P.W.-6 also named the accused persons. P.W.-3 is the Doctor who had examined the injured P.W.-6, P.W.-7 and P.W.-8. He deposed that he had examined the P.W.-6 and had found three injuries on his person and he proved the injury reports of P.W.6 as Exhibits-2 and 2/1. He had also examined P.W.-7, Md. Mukhtar Khan and had found two injuries on his person and he proved the injury reports of P.W.-7 as Exhibits-3 and 3/1. He had also examined P.W.-8 Md. Nayeem Khan and had found six injuries on his person and he proved the injury reports of P.W.-8 as Exhibits-4 and 4/1. The doctor has stated that all the injuries of the injured persons were caused by hard and blunt substances. The Investigating Officer, P.W.-4 had inspected the place of occurrence and he has also corroborated the prosecution case.

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23. This Court finds that the learned courts below have recorded concurrent findings upon appreciating the materials on record including the evidences of the injured victims of the case who have fully supported the prosecution case and the doctor who has examined three injured victims of the case. This Court finds no scope for re-appreciation of the evidences for

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interfering with conviction of the petitioners and there is no illegality or perversity in the impugned judgments.

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24. So far as sentence is concerned, this Court finds that it has been recorded by the learned trial court that the petitioners were previously convicted in one case and the prosecution has exhibited the certified copy of the Judgment of the said case i.e. G.R. Case No. 67/2001 as Exhibit-18 and this fact has not been disputed by the learned counsel appearing for the petitioners. Further, in the present case at the time of occurrence, the petitioners abused and assaulted the informant and other victims as one case was earlier lodged against them. Considering the manner and reason for which the offence has been committed in the present case, this Court is not inclined to interfere with the sentences of the petitioners.

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25. Accordingly, in view of the aforesaid findings, both the criminal revision petitions are hereby dismissed .

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26. Interim order, if any, stands vacated.

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27. Bail bonds furnished by the petitioners are cancelled.

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28. Pending interlocutory application, if any, is closed.

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29. Let the lower court records be immediately sent back to the court concerned.

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30. Let a copy of this Judgment be communicated to the learned court below through “email/FAX”.

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(Anubha Rawat Choudhary, J.)

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Binit/

Salim Ansari Alias MD Salim Mistri and Ors. v. State of Jharkhand

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Salim Ansari Alias MD Salim Mistri and Ors. v. State of Jharkhand

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