AFSAR SHEIKH And ORS. v. STATE OF JHARKHAND

Cr.A(SJ) No.812 of 2006 Page | 2 appearing for the appellants as well as Mrs. Nehala Sharmin, learned Spl. P.P. appearing for the State.

4. This instant appeal is directed against the judgment and order of conviction and sentence dated 16.05.2006 passed by learned Additional Sessions Judge No.I, Rajmahal in Sessions Case No.185 of 1986 (S.T. Case No.147 of 2002) whereby and whereunder all the appellants were sentenced to undergo R.I. for three years for the offence punishable under Section 148 of the Indian Penal Code and R.I. for three years for the offence punishable under Section 324 of the I.P.C. Both the sentences were directed to be run concurrently.

5. The factual matrix as depicted in the F.I.R. lodged by one Naimuddin Sheikh (informant) is that on 06.03.1984, he was attacked by a group of accused persons, including Sheikh Mohammad, who died during trial and his name was deleted vide order dated 19.12.2002, while returning to his village after fishing and having fishing net with them. It is further alleged that the assailants armed with weapons such as hasue, sword and farsa assaulted the informant as a result of which he became unconscious and then he was taken to

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Cr.A(SJ) No.812 of 2006 Page | 3 the hospital for treatment, thereafter, the incident was reported to the police.

On the basis of above fardbeyan, the case was instituted as Rajmahal P.S. Case No.96 of 1984 for the offences under Sections 147, 148, 149, 307 and 326 of the Indian Penal Code.

6. After completion of the investigation, charge-sheet was submitted against the appellants for the aforesaid offences and accordingly, cognizance was taken and subsequently, the case was committed to the Court of Sessions where Sessions Case No.185 of 1986 (S.T. Case No.147 of 2002) was registered. Charges were framed against the accused appellants under Sections 148, 307/149 and 326/149 of the I.P.C. which was read over and explained to them for which they denied and claimed to be tried.

7. In the course of trial, altogether four witnesses were examined by the prosecution and following documentary evidence were also adduced:

Exhibit 1 : Fardbeyan

Exhibit 2 : F.I.R.

8. After conclusion of trial, the appellant was held guilty

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Cr.A(SJ) No.812 of 2006 Page | 4 for the aforesaid offences and sentenced as stated above which has been assailed in this appeal.

9. Learned amicus for the appellants No.1 to 4 submits that the appellants are thoroughly innocent and have been falsely implicated in this case only on the basis of suspicion. No specific overt act has been attributed against the appellants rather causing injury by sword has been alleged against appellant Khoshu Sheikh (since deceased) and there are general and omnibus allegation against other appellants. It is alleged that when the informant was returning after fishing from pond along with net and fishes, meanwhile, present appellants met and started assaulting him by hasua, lathi, sword and farsa etc. The injured informant Naimuddin Sheikh was taken to hospital for treatment and the F.I.R. was also lodged for the offences under Sections 147, 148, 149, 307 and 326 of the I.P.C. The learned trial court after conclusion of trial has held the appellants guilty for the offences under Sections 148 and 324 of the I.P.C. It is further submitted that the prosecution has failed to prove the injury report of the deceased by examining the concerned doctor and the

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Cr.A(SJ) No.812 of 2006 Page | 5 Investigating Officer of the case has also not been examined in this case. There was old dispute between the parties and a complaint case was also lodged by the appellants against the informant of this case prior to this occurrence. The F.I.R. was also lodged after 34 days delay without any reasonable explanation. In the alternative, it is submitted that the learned trial court has failed to record any special reasons for not extending the benefit under Section 360 of the Cr.P.C. or Section 4 of the Probation of Offenders Act, 1958. The simple reason assigned is that the offence is very serious in nature. The sole injured is the informant (P.W.-3) who has stated overt act only of Khoshu Sheikh and none heirs/else rather there are general and omnibus allegation against the other co- accused persons. Hence, impugned judgment and order is not sustainable and is fit to be set aside by allowing this appeal.

10. On the other hand, learned Addl. P.P. appearing for the State has opposed the contentions raised on behalf of the appellant and submitted that the informant and other eye witnesses had categorically proved the prosecution case

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Cr.A(SJ) No.812 of 2006 Page | 6 beyond doubt. Mere non-examination of Investigating Officer and Doctor is not sufficient to discard the prosecution case and disbelieve the evidence of ocular witnesses. Therefore, this appeal has no merit and is fit to be dismissed.

11. I have gone through the trial court record along with impugned judgment and order in the light of the arguments placed on behalf of both side.

It appears that there was old dispute between the parties and there was case and counter case. So far overt act of present appellants is concerned, it is not whispered in the evidence at all as to what was the common object of the appellants, while forming an unlawful assembly and no specific overt act has been attributed against the appellants. They deserve benefit of doubt.

12. In view of the aforesaid discussions and reasons, I find merits in this appeal which is hereby allowed and impugned judgment and order of conviction and sentence of appellant is set aside. Appellant is on provisional bail. He is discharged from liability of bail bond and sureties are also discharged.

13. I appreciate the able assistance rendered by Mr. Pradyot

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Cr.A(SJ) No.812 of 2006 Page | 7 Chatterjee, the learned Amicus and Mrs. Nehala Sharmin, the learned S.P.P.

14. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills, as per Notification dated 23.11.2017.

15. Let a copy of this judgment along with Trial Court record be sent back to the concerned Trial Court for information and needful.

16. Pending I.A., if any, stands disposed of. (Pradeep Kumar Srivastava, J.)

Sachin

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