Partly allowed

Jama Mian Alijama Mia And Ors. v. State of Jharkhand

Jharkhand HC3 Dec 2021Cr.A(SJ)/855/2010

Case brief

AI extract

What is this about?

High Court of Jharkhand allowed criminal appeal against conviction for attempted murder (Section 307 IPC). Appellate bench found insufficient evidence of intent to kill based on injury reports. Modified conviction to voluntary causing of hurt (Sections 323/324/325 IPC) read with Section 149. Sustained conviction for rioting (Section 148 IPC). Sentences set aside as compromise filed and appellants

What did the court decide?

Conviction modified from Section 307/149 to Sections 323/324/325/149 IPC; Section 148 conviction sustained. Custodial sentence set aside; fine set aside; compensation of Rs. 3000 each to injured parti

Jama Mian Alijama Mia And Ors. Vs State of… — Murder and Culpable Homicide | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction)

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Cr. Appeal (SJ) No. 855 of 2010

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(Against the judgment of conviction and the order of sentence both dated 13.09.2010, passed by the learned District & Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 387 of 2006)

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Jama Mian @ Alijama Mia, son of Sakarli Mian

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Naim Mian, son of late Lukman Ansari

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Kayum Mian @ Kayum Ansari, son of late Lukman Ansari @ Luman Ansari

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Ishraphil Mian @ Esrafil, son of Lukman Mian @ Lukman Ansari

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Jiyaul Ansari @ Udal Mian, son of Lukman Mian @ Lukman Ansari

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Kalim Mian @ Md. Kalim Ansari, son of late Dalu Mian

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All residents of village-Neura, P.O. & P.S.-Chainpur, District-Palamau

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…. .… Appellants Versus The State of Jharkhand ..... .... Respondent

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(Through V.C.)

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CORAM: HON’BLE MR. JUSTICE RATNAKER BHENGRA

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------For the Appellant : Mr. A.K. Kashyap, Sr. Advocate For the State : Mr. Shiv Shankar Kumar, APP

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By Court:

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Heard Mr. A.K. Kashyap, the learned senior counsel, appearing for the appellants and Mr. Shiv Shankar Kumar, the learned APP for the State.

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2. The present criminal appeal is preferred against the judgment of conviction and the order of sentence both dated 13.09.2010, passed by the learned District & Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 387 of 2006, whereby and where under, the appellants were convicted under Sections 148 and 307/149 of the Indian Penal Code. The appellants were sentenced to undergo RI for one year and a fine of Rs.1000/- each under section 148 of the Indian Penal Code and in default to payment of fine appellants were ordered to further undergo RI for three months. Appellants were sentenced to undergo RI for seven years and a fine of Rs. 2000/- each under Section 307/149 of the Indian Penal Code and in default of payment of fine appellants were ordered to further undergo RI for six months each. Both the sentences were directed to run concurrently.

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3. The case of the prosecution, in brief, as per the fardbeyan dated 03.07.2005 of the informant PW-4 Johari Bibi is that on 03.07.2005 at about 05:00 pm, in the evening, she was fencing her land in the west side of her house. In the meantime her neighbour Jama Mian came to her and forbade her to fence to which she replied that it is her own land, then, Jama Mian abused her and exhorted “saali aise nahi manegi” . Thereafter, Naim Mian, Kayum Mian, Israphil Mian, Udal Mian came armed with lathi and spear and assaulted her with lathi . Kalim Mian also assaulted her with lathi . On halla her sons Hasim Ansari (PW-1) and Firoj Ansari (PW-2) came there and they were also assaulted with lathi due to which they sustained injuries. Informant further stated that Jama Mian assaulted her with garasa on her head due to which she became unconscious and fell down. Due to halla , peoples from nearby assembled and intervened. Injured were taken to Sadar Hospital, Daltonganj, where they were treated.

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4. On the basis of the fardbayan of the informant Chainpur P.S. Case no. 95/ 05 dated 05.07.2005 was lodged against the 7 named accused persons including the appellants herein under sections 147, 148, 149, 323, 324, 307 and 504 of IPC. After investigation charge sheet was submitted against the accused persons under sections 147, 148, 149, 323, 324, 325, 307 and 504 of IPC and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the appellants under sections 148 and 307/149 of IPC and trial was held. At the conclusion of the trial one of the accused Ajijan Bibi was acquitted of the charges and remaining accused persons or the appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

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5. The prosecution in order to prove its case had examined altogether eight witnesses out of whom PW-4 Johari Bibi is the informant of the case; PW-1 Hasim Ansari and PW-2 Firoz Ansari are the sons of the informant; PW-3 Kamrun Bibi is the daughter-in-law of the informant; PW-5 is Doctor Umesh Prasad Sinha, who had examined the injured persons; PW-6 is Niyazuddin Ansari, PW-7 is Gulam Murtaza and PW-8 is Samshuddin Mian and all these three witnesses were declared hostile. 6. Defence had also examined DW-1 Mohammad Kudus and DW-2 Md. Jalil Ansari in support of its case.

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7. PW4 Johari Bibi, is the informant of the case. Informant had

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stated in her evidence that on the day of occurrence at about 5:00 pm, in the evening, she was fencing her field. In the meantime accused Jama Mian came and forbade her to fence and on this the informant replied that she was fencing on her own field. Informant further stated that on this Jama Mian abused her and exhorted his family members. Thereafter, Naim Mian, Kayum Mian, Israphil Mian, Udal Mian, Kalim Mian and Ajijan Bibi came there armed with lathi and danda and Jama Mian was armed with garasa . Informant further stated that all the accused persons assaulted her with lathi and danda in the field itself. On halla her sons Hasim Mian and Firoz Mian along with her daughter-in-law Kamrun Bibi came there, then accused persons assaulted both her sons and daughter-in-law. Informant further stated that Naim Mian had assaulted her with lathi on her left hand due to which wrist of her left hand was fractured. Informant further stated that Jama Mian with an intention to kill her had assaulted her with garasa on her head due to which she sustained cut injury on her head and she fell down and became unconscious. Informant further stated that she sustained injuries on her back, leg etc. In her cross-examination informant stated that there was a dispute between her and the accused persons over the said land for the last 1 year and the case was before the court of SDO. Informant further stated that the accused persons claimed the disputed land as its own but SDO had given the decree in her favour.

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8. PW-1 Hasim Ansari is the son of the informant. PW-1 had stated in his evidence that on the day of occurrence at about 05:00 pm, in the evening, he was near his house and his mother was fencing her field. PW-1 further stated that he heard halla of his mother and he along with his younger brother Firoj reached at the field and saw that Jama Mian, Naim Mian, Kayum Mian, Israphil Mian, Jiyaur Mian, Kalim Mian and Ajijan Bibi were assaulting his mother with lathi , garasa and spear. He along with his brothers tried to save their mother then the accused persons also assaulted them with lathi . PW-1 further stated that he sustained injuries on his leg, hand and back and his brother also sustained injuries on his leg and hand. PW-1 further stated that the accused persons with intention to kill his mother had assaulted his mother. PW-1 had proved his signature on the fardbayan which was marked as Ext.-1. In his cross-examination PW-1 stated that when he along with his brother reached at the place of

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occurrence he saw his mother being assaulted by the accused persons.

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9. PW2 Firoj Ansari is the another son of the informant. PW-2 in his evidence had stated that on the day of occurrence at 05:00 pm, in the evening he was sitting outside his house and his mother was fencing the field. In the meantime Jama Mian, Naim Mian, Kayum Mian, Udal Mian, Jiyaul Haque, Israphil Mian, Kalim Mian and Ajijan Bibi came there armed with lathi and garasa and abused his mother and threatened her to kill and surrounded his mother and assaulted her. On alarm of his mother, he and his brother reached the place of occurrence and saw his mother being assaulted and they tried to save his mother but during this they sustained injuries by lathi . Jama Mian assaulted with farsa on the head of his mother due to which his mother became unconscious and fell down. PW-2 further stated that his mother and brother were seriously injured and they were taken to Sadar Hospital, Daltonganj by tempo. PW-2 further stated that he had sustained minor injuries and, therefore, he was not treated.

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10. PW-3 Kamrun Bibi is the daughter-in-law of the informant. PW-3 had stated in her evidence that on the day of occurrence at about 5:00 pm, in the evening she was in her house and her mother-in-law was fencing her field. In the meantime Jama Mian came there and forbade her from fencing, on this her mother-in-law replied that she was fencing her own field. Thereafter, Jama Mian exhorted and on this Kalim Mian, Naim Mian, Israphil Mian, Jiayul Mian, Kayum Mian and Ajijan Bibi came there armed with lathi and danda and Jama Mian was armed with farsa (garasa) . PW-3 further stated that all the accused persons with an intention to kill her mother-in-law assaulted her and on halla she along with her husband Hasim Mian and brother-in-law (devar) Firoz Mian went to the place of occurrence and saw that the accused persons were assaulting her mother-in-law. PW-3 further stated that her husband and brother-in-law went to save, then they were also assaulted by the accused persons. PW-3 further stated that Jama Mian assaulted her mother-in-law with farsa on her head due to which she sustained injury and became unconscious. In her cross-examination PW-3 stated that the accused persons are their gotias .

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11. (i) PW5 Dr. Umesh Prasad Sinha, had examined the injured PW-4 Johari Bibi and PW-1 Hasim Mian on 03.07.2005. On examination of PW-4 Johari Bibi, doctor found following injuries on her person:-

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I. Sharp cutting wound on right side of skull measuring 3" x 2 ½ " x bone deep.

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II. Bruise on backside 6" x ½ " reddish in colour.

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III. Swelling of left palm for which X-ray was advised.

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Doctor opined that injury no. I was caused by sharp cutting weapon and injury no. II was caused by hard and blunt substance and both these injuries were simple in nature. Doctor had proved the injury report of PW-4 Johari Bibi, which was marked as Ext.-2. Regarding injury no. III, opinion was kept pending for the the X-Ray report and on receiving X-Ray report, doctor stated that fourth finger of the left hand was fractured and this injury was stated as grievous.

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(ii) Doctor on examination of PW-1 Hasim Ansari had found following injures on his person:-

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I. Swelling on left leg knee with abrasion 1 cm dimension x skin deep Il. Abrasion on right index finger 1 cm dimension x skin deep Abrasion on back side 2"x ½ " x skin deep.

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Doctor opined that the nature of all injuries were simple and were caused by friction on hard and rough surface. Doctor had proved the injury report of PW-1 Hasim Mian which was marked as Ext.4

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ARGUMENTS ON BEHALF OF APPELLANTS

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12. Mr. A.K. Kashyap, the learned senior counsel for the appellants has, first and foremost, argued that the Investigating Officer has not been examined in this case by the prosecution, which has seriously caused prejudice to the case of the defence. The learned senior counsel has further submitted that out of eight prosecution witnesses, PW1 to PW4 are highly interested witnesses and belong to the informant’s family and have made contradictory statements on the manner of occurrence. PW5 is the doctor and PW6, PW7 and PW8, who are the independent witnesses, were declared hostile by the prosecution. Learned senior counsel further submitted that the appellants have been falsely implicated in this case due to the land disputes and the said land dispute is continuing between both the parties prior to the alleged occurrence and due to this reason, the interested witnesses i.e., PW1 to PW4 have falsely implicated the appellants in this case and, as such, no reliance can be placed on the deposition of PW1 to PW4.

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13. The learned senior counsel has further submitted that the prosecution case has not been corroborated by the medical evidence. The medical evidence shows that the informant PW4 Johari Bibi had not sustained any injury which was dangerous to her life. Johari Bibi had sustained three injuries out of which injury no. 1 and 2 were simple in nature and injury No.3, was grievous in nature, was on the left hand. Similarly, PW1 had sustained simple injuries which was caused by hard and blunt substance and that was possible, as per the opinion of the doctor, due to the falling down on the rough surface. As such, according to the opinion of doctor both the injured persons had not sustained any injury which can be dangerous to life and in view of the medical evidence no case is made out against the appellants under Section 307 of the Indian Penal Code.

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14. By referring to the evidence of PW2 Firoz Ansari, the learned senior counsel has submitted that as per the allegations alleged by the prosecution, PW-2 was also assaulted by the appellants, but, he has neither been examined by any doctor nor any injury report has been produced by the prosecution regarding any injury sustained by PW2 Firoj Ansari and, as such, this false allegation itself goes to show that a false and concocted case was lodged by the prosecution and it creates doubt over the case of the prosecution. The learned senior counsel has further argued that had PW2 been assaulted in the manner as stated by the prosecution and if the said allegation would have been true, then, the injury report of PW2 ought to have been produced by the prosecution but no any such injury report of PW-2 was produced by the prosecution. Learned senior counsel has also submitted that one of the co-accused Ajijan Bibi was acquitted by the learned trial Court on the same set of evidence.

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15. The learned senior counsel has finally submitted that both the parties are own gotias and there is a dispute between them regarding partition of land as they are the descendant of a common ancestor and appellants have got no criminal antecedent. Learned counsel lastly, submitted that the impugned judgment of conviction and order of sentence passed by the learned trial court against these appellants are not supported by any evidence and hence needs to be set-aside by this court.

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ARGUMENTS ON BEHALF OF STATE

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16. Mr. Shiv Shankar Kumar, the learned APP, has on the other

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hand, submitted that the evidence of PW1 and PW4 cannot be disregarded. He has further submitted that the evidence of the doctor has also supported the case of the prosecution.

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17. The learned APP submits that Section 149 of the Indian Penal Code creates a distinct and substantive offence and it must be proved that either any offence was committed by the members of unlawful assembly in prosecution of the common object or members of such assembly knew it to be likely to commit offence of unlawful assembly. Section 149 of the Indian Penal Code also creates vicarious liability with regard to culprits who are members of the unlawful assembly and that offence is committed in prosecution of the common object of the said assembly. Section 149 of the Indian Penal Code creates constructive or vicarious liability. The basis of such constructive guilt is mere membership of the unlawful assembly with the requisite common object or knowledge.

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18. The learned APP further submits that with regard to the offence under Section 307/149 of the Indian Penal Code, the Court has to see the nature of weapon used in the offence and the nature of injury and circumstances under which injury was caused to the injured. Section 307 of the Indian Penal Code has also two parts and in first part if any person with an intention does any act in such circumstances that if by that act caused the death he would have been guilty of murder. Thus, in first part it is not necessary that victim should sustain injury. In second part, if any person causes hurt with such intention or knowledge that if death had been caused then he would have been guilty of murder. In the case in hand firstly appellant Jama Mian exhorted his family members and then Jama Mian assaulted with garasa on the head of Johari Bibi. Therefore, common object of the accused persons were formed at the spot and in prosecution of common object Jama Mian assaulted with garasa on head of Johari Bibi. In the case in hand, it is not disputed that injury has been caused on the head with garasa and garasa is a deadly weapons and head is the vital part of the body.

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19. The learned APP has finally submitted that in this case, the accused persons were armed with garasa , lathi and danda . Garasa is a deadly weapon and therefore, it can be safely assumed that accused persons

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were armed with deadly weapons and is suggestive that accused persons used force or violence armed with deadly weapons.

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FINDINGS

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20. I have heard the learned counsels for both the parties, gone through the records and the evidences of the case. Appellants herein are convicted and sentenced for offence under sections 148 and 307/ 149 of IPC.

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21. From the evidence of prosecution witnesses, I find that both the parties are gotias and the cause of occurrence is land dispute between the parties.

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22. Regarding the conviction of the appellants under section 307/ 149 of IPC, I find from the fardbayan and the evidence of the informant PW-4 Johari Bibi that appellants had with an intention to kill assaulted her with lathi , danda and garasa . Informant also deposed that appellant Jama Mian had assaulted the informant with garasa on her head due to which informant had sustained cut injury on her head and other appellants had assaulted her with lathi and danda . Informant also deposed that appellant no. 2 Naim Mian had assaulted her with lathi in her left hand due to which wrist of her left hand was injured. Other injured of the case is informant’s son PW-1 Hasim Ansari, who had come to the place of occurrence on hearing halla of his mother and PW-1 had stated that appellants had assaulted him with lathi as a result he had sustained injury in his leg, hand and back. PW-2 and PW-3, who are the eye-witnesses to the assault, have corroborated the statement of the injured informant deposing that appellants had assaulted the informant Johari Bibi and PW-1 Hasim Ansari.

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23. Learned trial court had convicted the appellants under section 307/149 IPC for causing injury to the informant PW-4 Johari Bibi on her head with garasa . On going through the injury report Ext.-2 of injured PW-4 Johari Bibi, I find that three injuries were inflicted on the PW-4 informant, out of which injury no.I and injury no.II were simple in nature and injury no.III which was fracture in fourth finger of the left hand was opined by the doctor to be grievous in nature. So, the fact remains that PW-4 informant had sustained three injuries out of which injury no.III, was grievous in nature, but, it cannot be considered as dangerous to life. Hence, I come to the conclusion that if the appellants, who were six in numbers, had

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an intention to kill the informant Johari Bibi, then, they would have definitely caused more injuries to her, but, appellants had not done so. So, prosecution has failed to prove that appellants had an intention to kill the informant and therefore, charge against the appellants under section 307/149 of IPC is not proved. But, regarding injury no.I sustained by the informant, I find injury no.I is sharp cutting wound on the right side of skull measuring 3”x 2 ½” x bone deep and doctor opined that injury no. I was caused by sharp cutting weapon and was simple in nature. So, now conviction of the appellants is modified to one under section 324/149 IPC for causing hurt to informant with garasa .

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24. Regarding injury no. III sustained by PW-4 informant, I find from the deposition of the informant that informant had deposed that during the occurrence of assault appellant no. 2 Naim Mian had assaulted her with lathi on her left hand due to which wrist of her hand was fractured. On going through the injury report of the informant, I find that doctor PW-5 had stated that injured informant was referred by him to one Orthopedician Dr. Vijay Kumar and Dr. Vijay Kumar had examined the injured informant and found fracture in the fourth finger of her left hand and on the basis of the opinion of Dr. Vijay Kumar, injury no.III was noted as grievous, in the injury register at page no.93. So, conviction of all the appellants are modified to one under section 325/149 of IPC.

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25. Regarding injury no.II sustained by PW-4 informant Johari Bibi and injuries sustained by PW-1 Hasim Ansari, I find that injury no.II sustained by the informant PW-4 is bruise on back side measuring 6”x ½” and doctor opined this injury to be simple in nature. Further, PW-1 Hasim Ansari had deposed in his evidence that appellants had assaulted him by lathi which is corroborated by his injury report Ext.-4 wherein doctor had found three injuries on his person and opined that all the injuries inflicted upon PW-1 Hasim Ansari were simple in nature. Hence, convictions of the appellants are modified to one under section 323/149 of IPC.

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26. Regarding conviction of the appellants under section 148 of IPC, it has come in the evidence that all the appellants came to the place of occurrence armed with lathi, danda and garasa and forming an unlawful assembly assaulted the informant PW-4 Johari Bibi and her son PW-1 Hasim Ansari. Therefore, I uphold the conviction of all the appellants under

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section 148 of IPC.

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27. Learned counsel for the appellants has submitted that Investigating Officer was not examined which caused prejudice to the appellants is not tenable as in the case in hand two injured witnesses informant PW-4 and PW-1 have consistently deposed about the assault on them and injuries of both these injured witnesses are corroborated by the evidence of the doctor viz. injury report Ext.-2 and Ext.-4.

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28. Hence, the impugned judgment of conviction of the appellants under section 307/149 IPC dated 13.09.2010 and its corresponding sentence passed by the learned District and Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 387 of 2006 are set aside and conviction of the appellants are now modified to one under sections 324/149, 325/149 and 323/149 of IPC. Conviction of the appellants under section 148 IPC is sustained and upheld.

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29. So, far as sentence of the appellants are concerned, I find that a joint compromise petition I.A. (Cr.) no. 486 of 2021 has been filed by the appellants. On going through the aforesaid Interlocutory Application, I find that appellants have stated that both the parties are relative of each other and Annexure-1 which is a joint compromise petition, notarized before the Notary, Medininagar, Palamau, dated 20.12.2020 has been attached stating that both the parties are living peacefully. The occurrence was of year 2005 and till now more than 15 years have passed and appellants had faced rigor and vigors of trial. From the record it appears that Appellant no.1 Jama Mian @ Alijama Mia has undergone about 1 year and 7 months in custody and remaining other appellants have also undergone custody ranging from about 2 months to 4 months. Hence, at this stage, no custodial sentence is imposed and the period already undergone by the appellants are considered as sentence sufficiently served. Further, at this stage payment of fine of Rs.1000/- each imposed by the learned trial court under section 148 IPC is no longer necessary and is set-aside. Compensation amount of Rs. 3000/each totaling to Rs. 18000/- shall be paid by the appellants to the injured PW-4 Johari Bibi and PW-1 Hasim Ansari out of which Rs. 12000/- shall be paid to the injured Johari Bibi and Rs. 6000/- shall be paid to the injured PW-1 Hasim Ansari and the aforesaid compensation shall be paid within three months from the date of receipt of copy of this judgment and in default

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of payment of compensation amount appellants will undergo two months SI. The compensation amount may be deposited in the trial court below. The learned trail court shall carry out the order of this court. Appellants will be discharged of their liabilities of bail bonds after payment of compensation

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amounts.

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30. Accordingly, Criminal Appeal (SJ) No. 855 of 2010 is dismissed with above modification in conviction and sentence. 31. IA (Cr.) No. 486 of 2021 also stands disposed of.

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 03^rd December, 2021 Madhav-NAFR

Jama Mian Alijama Mia And Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Jama Mian Alijama Mia And Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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