Jasim Khan and Others vs The State of Jharkhand

Pradeep Kumar, J.—Heard the learned Counsel for the appellants and learned Counsel for the state.

The instant appeal is directed against the common judgment of conviction and order of sentence dated 15.10.2001 passed by Sri B.Z. Ansari, 2nd Additional Sessions Judge, Lohardaga in Sessions Trial No. 18 of 1988 by which judgment appellant Nabul Hassan was found guilty u/s 324 I.P.C. Further, the remaining appellants were found guilty u/s 324/149 I.P.C. Lastly, all the accused-appellants have been found guilty u/s 148 of the I.P.C. All the appellants have been sentenced to undergo R.I. for 2 years under each sections. However, all the sentences were directed to run concurrently.

It is submitted by learned Counsel for the appellants that it will appear from the prosecution evidence that there was old enmity between both the parties with regard to the dispute of Masjid and earlier for the death of brother of appellant, Nabul Hassan a murder case was also filed against the informant-Sainul Khan and as such the instant case is a counter blast of earlier case and in fact no such occurrence took place and as such the conviction of the appellants are bad in law and fit to be set aside.

On the other hand, learned Counsel for the state has supported the prosecution case and stated that although there is a admitted enmity between both the parties, but, in fact all the appellants made an attempt on the lives of the informant and Nabul Hassan fired upon him which hit the other witness namely Mir Salim, who got some injury on his thigh and as such all the appellants have rightly been convicted and sentenced as aforesaid.

After hearing both the parties and after going through the evidences on record, it appears that the prosecution case was started on the basis of the fardbeyan given by the informant, Sainul Khan on 30.8.1985 at 12 hrs stating therein that on the same day at 10.00 a.m. he was going to Lohardaga Bazar along with villager Moinuddin Khan, then suddenly the accused persons namely, Nabul Hassan, Jasim Khan, Murtaza Khan, Nizamuddin Khan, who were standing under a Mahua tree at Nakritanr variously armed with gun, challenged them and stated that they will be killed today. Then both of them in order to save their lives went behind the tree and started making hulla and on hulla Salim Mir, Jalil Khan, Barik Khan, Mustafa Khan etc came there. They started running towards the village, but in the meanwhile, Nabul Hassan fired from near the Mahua tree causing injury on the right thigh of Mir Salim. When they reached the village then Jasim Khan fired from gun which hit the Karanj tree and wall. Subsequently, he sent Fainul Khan to inform the police and accused ran away.

On the basis of the said fardbeyan police registered a case u/s 147, 148, 149, 341, 307, 323 of the I.P.C and 27 Arms Act and after investigation submitted charge sheet in the case. Since, the case was exclusively triable by the court of Sessions, Learned C.J.M after taking cognizance committed the case to the court of Sessions and lastly the case was tried by 2nd Additional Sessions Judge, Lohardaga, who convicted and sentenced the appellants as aforesaid.

It appears that in course of trial, the prosecution has examined 8 witnesses.

P.W. 1 is Mir Salim

P.W. 2 is Gulam Mustafa

P.W. 3 is Samir Khan

P.W. 4 is Barik Khan

P.W. 5 is Mahiudddin Khan

P.W. 6 is Jalil Khan

P.W. 7 is Sainul Khan, the informant of the case

P.W. 8 is Hawaldar Govind Oraon, formal witness, who proved the formal F.I.R.

It is important to note that prosecution failed to examine the Investigating Officer and doctor in the trial. It appears that P.W. 1 Mir Salim has stated that on the date of occurrence he was at his home at about 10 a.m. and Sainul and Moinuddin were going to market. Suddenly, they started making hulla of ''ran away ran away''. Then he came out along with villagers namely Mustafa, Barik Khan and Jabbar. Then he saw Nablu Khan having gun in his hand, Jasim had gun in his hand and other having other arms in their hands and saying that commit murder of these two persons. Suddenly Nablu fired from his gun causing injury on his right thigh. He was wearing lungi and even his lungi got burnt. Then they ran towards the village and took shelter under Karanj tree. Subsequently, Jasim Khan fired which hit the Karanj tree and wall of Sainul Khan. After that police came and recovered the bullet from the tree and wall. He identified the accused in the court.

Similar statement has been given by the informant, P.W. 6, Sainul Khan, who has stated that on the date of occurrence he was going to Lohardaga Bazar along with Moinuddin and when they reached near the Mahua tree near Ambabari Nakritanr then he found Nabul Hassan with a gun in his hand and Jasim also having gun in his hand and others armed with Bhala and Lathi. Accused persons stated to them that they will commit murder of the informant. Then he made hulla and started running and took shelter near a tree. The villagers came and in the meanwhile, Nabul Hassan fired from his gun causing injury to Mir Salim on his right thigh. Then they came near and took shelter behind the Karanj tree where upon Jasim Khan fired upon the Karanj tree. Subsequently, police came and recorded his statement. He has proved his signature on the fardbeyan marked as Ext.1/5. The accused ran away. In his cross examination he has admitted that there is dispute between both the parties. He also admitted that a case of murder is also pending against him filed by the accused Nabul Hassan. Other P.W.s have stated the same thing and P.W. 4 and 5 have also stated that there was long dispute between the parties with regard to the Masjid of the village where the accused were not allowing the informant party to make their prayer as it was being claimed as personal property of Nabul Hassan.

Thus, from the evidences available on the record, it appears that although as per the informant all the appellants were present variously armed with gun, revolver, pharsa and lathi, but there is no allegatio that they took part or any attempt was made to assault any of the informant party and his friend Muinuddin Khan. They have, although, tried to say that one fire was made by Nabul Hassan, which hit the thigh of one of the injured, Mir Salim, but whether, the said injury was a fire arm injury or not could not be verified since, no doctor was examined nor any injury report was brought before the court. It is important to note that witnesses have tried to say that pillets were recovered from the tree and from the wall by the Investigating Officer, who prepared seizure list of the same, but no seizure list has been proved nor the Investigating officer, since he has not been examined by the prosecution. Hence, it is difficult to arrive that any fire arm injury was caused to P.W. 1 Mir Salim and hence, conviction of the appellant, Nabul Hassan @ Nabiuel Hassan u/s 324 I.P.C is not proper.

In that view of the matter, the conviction of the appellant namely Nabul Hassan @ Nabiuel Hassan u/s 324 I.P.C is altered to Section 323 of the I.P.C. He is sentenced to undergo the period of one month, which he had undergone during trial and appeal, since the period of one month and the rigor of trial suffered by the appellants since 1985 is a sufficient punishment. So far as the other appellants namely Jasim Khan, Amul Khan, Amanullah Khan, Asraful Khan, Nizamuddin Khan, Aisanul Khan, Murtaza Khan, Ghura Oraon are concerned, it is not acceptable that all of them were present armed with various weapons and they had intention to commit some offence, since they did not made any attempt to fire from their respective gun. In that view of the matter, their presence, in view of the long drawn dispute, appears to be doubtful. Hence, all the above named appellants are given benefit of doubt and acquitted from the charges levelled against them.

In the result, Cr. Appeal No. 513 of 2001 is allowed and Cr. Appeal No. 514 of 2001 is allowed in part. Since, all the appellants are on bail. They are released from the liability of their bail bond.