The mental and physical sufferings were taken into consideration to allow the criminal revision appeal – Jharkhand high court

Cr. Appeal5903 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. AppealNo.5903 Against the Judgment of Conviction and order of sentence dated 31.03.2003 passed by learned Addl. District & Sessions Judge FTC IV Bokaro in Sessions Trial No.36 of 1997 arising out of Harla P.S. Case No.196 Bokaro Jharkhand) … Appellants 1. Rabul Ansari 2. Abdul Ansari 3. Shafik Ansari 4. Aftabuddin Ansari 5. Sahbuddin Ansari 6. Liyakat Ansari The State of Jharkhand CORAM: HON’BLE MR. JUSTICE NAVNEET KUMAR Mr. Ashim Kr. Sahani Advocate For the Appellants Mr. Pankaj Verma Advocate For the State Mr. Md. Hatim A.P.P. C.A.V. No.23.11.2021 Pronounced on : 03 02 2022 … Respondent This appeal is preferred against the Judgment of Conviction and order of sentence dated 31.03.2003 passed by learned Addl. District & Sessions Judge Fast Track Court IV Bokaro in Sessions Trial No.36 of 1997 arising out of Harla P.S. Case No.12 of 1996 whereby the accused appellants have been convicted under Sections 148 387 323 353 and 149 of IPC and sentenced to undergo imprisonment for one year under Section 148 of IPC three years under Section 387 of IPC 6 months under Section 323 of IPC and one year under Sections 353 of IPC and all the sentences shall run concurrently. The allegations against the appellant arose in the wake of the fardbeyan dated 16.1.1996 of the informant Abodh Goswami P.W.5 that on 16.01.1996 at about 4.30 pm he was collecting toll in Baruwa ghat Mela on the occasion of Makarsakaranti from the shopkeepers on behalf of the Mela contractor Manpuran Manjhi. In the meantime all the six accused appellants came with lathis in their hands along with 10 to 12 unknown persons. The accused persons asked the informant about mela contractor Manpuran Manjhi and demanded Cr. Appeal5903 Rs.500 as a Rangdari Tax from him. On his refusal they assaulted the informant with fists and slaps when constables Ram Lakhan Singh and Jitendra Kr. Gosh deputed on duty in the said Mela intervened to pacify them then Aftauddin Ansari and Liyakat Ansari caught hold of Ram Lakhan Singh and Rabul Ansari assaulted on the head of Ram lakhan Singh and when the constable Jitendra Kr. Gosh tried to save Ram Lakhan Singh then Liyakat Ansari and Aftauddin Ansari started assaulting by Lathi by which there was stampede in the mela and the accused persons left the spot after damaging the articles of the shop keepers. The informant named a few witnesses who are said to have seen the alleged Yamuna Mandal Ranjit Mandal Uttam Goswami Jharilal Mahto Kishore Mahto etc. 3. On the basis of aforesaid fardbeyan Harla P.S. Case No.12 of 1996 was registered under Sections 147 148 149 341 323 333 307 386 387 353 427 of IPC against all the six accused persons and 10 to 12 unknown persons and after the investigation the charge sheet was submitted against all the accused persons and the cognizance was taken. After taking cognizance the case was committed to the court of sessions. The accused pleaded not guilty to the charges explained to them for the offences punishable under sections 148 341 149 307 149 387 149 353 149 and 427 149 of the IPC and denied the allegations levelled against them and after trial the learned court below passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 4. Heard Mr. Ashim Kr. Sahani and Mr. Pankaj Verma learned defence counsel appearing on behalf of the appellants and Mr. Md. Hatim APP appearing on behalf of the State. 5. Assailing the impugned judgment of conviction and order of sentence dated 31.03.2003 passed by the learned court below it is submitted on behalf of the appellants that the learned trial court has committed gross error in appreciation of the evidences as prosecution had failed to bring home the charges levelled against the appellants. It has been pointed out that the learned court below Cr. Appeal5903 should not have relied upon the evidences of PW 3 and PW 5 as the same are contradicted by other witnesses and further the learned court below also did not consider the fact that there is no evidence with specific allegation of demanding rangdari from the informant and the non examination of the I.O. caused serious prejudice to the defence. Further it is also pointed out on behalf of the appellants that the Court below should not have relied upon the untrustworthy and uncorroborated testimonies of witnesses in view of the fact that at the place of occurrence several persons were present but no independent witness has been examined and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. 6. On the other hand the learned APP appearing on behalf of the state submitted that there are direct allegations against the appellants the learned trial court has rightly appreciated the evidences available on the record and found the appellants guilty for the offence punishable under Sections 148 387 323 353 read with section 149 of IPC and there is no legal point to interfere as the trial court below having relied upon the evidences particularly the depositions of PWs 2 3 5 & 6 and passed the judgment of conviction and order of sentence after considering the facts and circumstances of the case and evidences on record and as such this appeal is fit to be dismissed being devoid of merit. The appellants have been charged that when the informant was collecting toll from the shopkeepers in a funfair namely Baruwa Ghat Mela on the occasion of Makar Sakranti on behalf the Mela Contractor Manpuran Manjhi of the said Mela in the meantime the appellants along with 10 to 12 unknown persons reached there and enquired about the said agent Manpuran Manjhi but he could not come forward although the informant said that he was somewhere in the Mela thereupon the appellants started asking rangdari Extortion) a sum of Rs.500 to enjoy in the said Mela upon which the informant P.W.5 protested and showed his inability to pay the said amount then the accused appellant started assaulting the informant Cr. Appeal5903 by lathiand fists and then the police on duty present in the mela namely P.W.3 Ramlakhan Singh intervened then he was caught by Aftabuddin Ansari and Liyakat Ansari and Rabul Ansari assaulted on his head with an intention to kill him then another police constable Jitendra Kumar Ghosh tried to pacify the dispute then the said Aftabuddin Ansari and Liyakat Ansari did mar pit by Lathiresulting in the stampede in the Mela and the appellants left the place of occurrence after damaging the articles of the The informant P.W.5 named a few witnesses in the FIR who are said to have seen the alleged occurrence as Yamuna Mandal Ranjit Mandal Uttam Goswami Jharilal Mahto Kishore Mahto etc. During the course of the trial the prosecution failed to prove the charges of Sections 307 and 427 of IPC and the appellants have been 148 387 323 353 149 of IPC. PW 1 Kishore Mahto did not support the case of the prosecution and he has been declared hostile. P.W.2 Lakhi Ram Goswami is the village Chowkidar who did not utter a single word about any one of the appellants as to who had assaulted whom but he clearly stated that he was on duty and there had been mar pit(quarrel) with the appellants Rabul Aftabuddin etc. 6 in numbers who had come with lathi and rod by which Ram Lakhan Singh constable and Abodh Goswami(P.W.5) had sustained injuries. Further it is found from the testimonies of this witness that he did not whisper about any kind of Rangdari demanded by any one of the appellants and the case of the prosecution does not get support for the charges of Extortion against the appellants but he clearly supported that the appellants being 6 in numbers had come to Mela and had assaulted the P.W.3 and P.W.5 by which both of them sustained injuries inflicted by these appellants. 10. PW 3 Ram Lakhan Singh was constable and he was on duty in the said Mela and he stated sweepingly against all the appellants Rabul Ansari Abdul Ansari Shafik Ansari Liyakat Ansari and Cr. Appeal5903 Sahabuddin Ansari that they had assaulted him and thus it is found that there was breach of peace in the Mela at the instance and he further stated that the appellants were demanding Rangdari extortion) but this version of Rangdari was vague as to who was asking for the alleged Rangdari and what was the amount Thus the charge of Extortion is not substantiated by this witness also. This witness P.W.3 stated that he had tried to pacify the dispute between the informant and the appellants and thereby he received injuries. The informant has been examined as P.W.5 who identified his signature on the Fardbayan which is marked as Ext.3. This witness PW 5 was also injured in the assault and he was the victim of extortion. But in the examination in chief P.W.5 never disclosed this fact that the appellants were asking rangdari of Rs. 5 00 and thus the offence punishable under Section 387 IPC is wholly falsified by the version of this witness and he stated clearly that the appellants came to the said Mela and enquired asked about the agent of the Mela namely Manpuran Manjhi and thereafter he was assaulted by them. Neither any statement regarding extortion of money has been given by this victimwitness P.W.5 nor has any amount of extortion been disclosed in his deposition. Thus this informant victim himself did not substantiate the charges of extortion by any one of the appellants. However this witness has clearly stated that the appellants have assaulted him by which he sustained injuries along with the police who was also injured when police reached there. Further the said Manpuran Manjhi has been examined as P.W.6 who also did not support the charges of extortion at all. In his Examination in Chief he did not utter a single word about extortion by any one of the appellants from the informant P.W.5 nor has any amount of extortion been whispered. Although this witness stated that the appellants had quarrelled with the informant and saw one constable was injured and he did not see any injury on the body of the informant. 11. From the testimonies of the aforesaid witnesses namely P.W.2 P.W.3 and P.W.5 it is well founded that the all these witnesses have Cr. Appeal5903 consistently and uniformly stated that the appellants had assaulted the police constable P.W.3 Ram Lakhan Singh and Abodh Goswami P.W.5 but none extortion Rangdari from any one of the appellants as discussed elaborately in the foregoing paragraphs. Further it is found that the injuries inflicted upon both the injured P.W.3 and P.W.5 were simple in nature proving the offence under section 323 of the IPC as evident from the versions of P.W.4 also who is the doctor and he had medically examined both the injured persons and found the injuries of Ram Lakhan Singh as follows: One swelling on his parietal region of skull of 3”x3 ½” of size bruise 3”x2” on left buttock and complain of pain on whole body. All the injuries were caused by hard and blunt object which were simple in nature. The injury report of injured Ram Lakhan Singh has been marked exhibit 1. On the same day doctorexamined the injuries of Abodh Gosawami on police requisition and found following injuries on his person. I) swelling 2”x2” at occipital region of skull. II) Bruise 3”x2” on back of chest on back. III) Bruise 2”x2” of right upper arm. All injuries were caused by hard and blunt object which were simple in nature. The injury report of this informant has been marked exhibit 2. According to the opinion of the doctor this type of injury can be caused by lathi blow. 12. In the light of the aforesaid findings it is well established that the P.W.3 and P.W.5 had sustained the simple injuries and both of them consistently and uniformly deposed that the appellants had assaulted them by fists and lathi. Thus the offence punishable under section 323 149 of IPC is proved and since one of the victims P.W.3 was police constable and he had sustained the injuries when he intervened in the dispute between the informant P.W.5 and the appellants and as such he was deterred from the discharge of his public duties. But there is no iota of evidence in the testimonies of either P.W.3 or P.W.5 charges of Cr. Appeal5903 extortion Rangdari as their statements are vague and not clear. In support of this learned defence counsel has relied upon the rulings related to the ingredients of the offence constituting under Section 387 IPC as reported in 1986 PLJR 535 Ramjee Singh Vs. State of Bihar where under the circumstances of the case it has been held as under : “In order to constitute an offence as laid down under section 387 of the Indian Penal Code there ought to be some visible overt act which may reflect the natural and normal inference that the wrong doer had in fact put a person or had made an attempt to put any person in fear of death or of grievous hurt’’ In view of the aforesaid observations it is found that in the present case the victim informant did not utter a single word about the extortion by any one of the appellants and further it is admitted case of the prosecution that the agency of the said Mela was given to P.W. 6 but he also did not depose about the demand of the extortion by the appellants therefore there is no visual overt act attributed against the appellant is corroborated. It is also well founded in the foregoing paragraphs that there was a simple injury upon the P.W.3 and P.W.5 and there was no evidence of either putting the victim in fear of death or grievous hurt. Thus the learned trial court has erroneously held the guilt of the appellants for the offence punishable under section 387 of the Indian Penal Code. 13. PW 7 Madan Mohan Singh is a formal witness and in the deposition he has proved the writing and handwritings of the fardbeyan which has been marked as Ext 4 the endorsement of the fardbeyan has been marked as Ext. 4 1 and the formal FIR which has been marked as Ext. 5 and in cross examination this witness has stated that none of the aforesaid exhibits either Exts.4 4 1 and 5 have been written before him. He has simply proved his signature and the writings on these documents. Even the I.O. in this case has not been examined and appellants had drawn the attention of the witnesses on their early statements and therefore they could not get the opportunity to bring out the contradictions in their testimonies Cr. Appeal5903 in order to appraise their veracity and truthfulness hence the appellants have been debarred from holding the effective cross examination on the point of alleged extortion from victim P.W.5 and as such the appellants had been deprived of from drawing the attention of I.O. on the charge of extortion and thus the non examination of the I.O. has caused serious prejudice. Further neither the place of occurrence has been proved nor the weapon of offence which is alleged to have been used in the commission of offence has been seized and therefore the serious charges for the offence under Section 387 IPC is not proved and any independent witnesses have not been examined to corroborate the evidence of the prosecution of rangdari under Section 387 of IPC and hence the learned trial court has committed error in the appreciation of the evidences for the charges levelled against the accused for the offences punishable under sections 148 and 387 of the Indian Penal Code. 14. From the aforesaid discussions it is well established that the appellants in prosecution of their common object had caused simple hurt to P.W.5 and when P.W.3 being the police constable intervened he was also assaulted by the appellants and thereby deterring the police constable in discharge of his official duty. Hence all the appellants are found guilty for the offences punishable under sections 147 323 and 353 read with section 149 of the IPC accordingly the judgment of conviction passed by the learned trial court against the appellants is altered for the offences punishable under sections 147 323 and 353 read with section 149 of the IPC. No offence either under section 148 or under section 387 of IPC is proved. As a consequence the impugned judgment of conviction and order of sentence passed by the learned trial court against the appellants are set aside and in the light of aforesaid discussions and findings appellants are hereby convicted for the offences punishable under sections 147 323 and 353 read with section 149 of the IPC 15. Having regard to the sentence it has been pointed out that the appellants have been suffering the trauma of criminal proceedings 9 Cr. Appeal5903 since the year 1996 last 26 years and they are in the middle of the age. Further there is nothing on the record to show their criminal antecedents. Therefore taking into consideration the mental and physical sufferings of the appellants for a long period of time any punishment would be unjust under the facts and circumstances of the case hence instead of sentencing the appellants to any punishments the appellants namely Rabul Ansari Abdul Ansari Shafik Ansari Aftabuddin Ansari Sahbuddin Ansari Liyakat Ansari are ordered to release after due admonition. Since the appellants are on bail they are discharged from the liabilities of bail 16. In the result Judgment of Conviction and order of sentence dated 31.03.2003 passed by learned Addl. District & Sessions Judge FTC IV Bokaro in Sessions Trial No.397 arising out of Harla P.S. Case No.196 is modified as above. 17. Accordingly this appeal is partly allowed. Let the Lower Court Record be sent back forthwith to the concerned court below. Jharkhand High Court Ranchi Dated 03.02.2022 NAFR R.Kumar 

Summary: The mental and physical sufferings were taken into consideration to allow the criminal revision appeal – Jharkhand high court The present appeal is filed against the judgment of conviction passed by sessions judge in Trial No.36 of 1997 and the appellants were found guilty of the offenses under Sections 148, 387, 323, 353, and 149 of IPC and imprisonment of 1 year under Section 148 of IPC. The appeal was heard and allowed by a single judge bench of HON’BLE MR. JUSTICE NAVNEET KUMAR in the case of Rabul Ansari and Ors versus The State of Jharkhand (Cr. Appeal (SJ) No.594 of 2003)  The sessions judge convicted the appellants for damaging the articles and causing hurt to shopkeepers and witnesses of the case and booked the appellants under Sections 147, 148, 149, 341, 323, 333, 307, 386, 387, 353, 427 of IPC. The trial was conducted by a lower court and passed the order of conviction which is under review through this appeal. The learned counsel appearing on behalf of the petitioners submits that the learned trial court has committed gross error in appreciation of the evidence, as the prosecution had failed in proving the charges leveled against the appellants. It is further submitted that the court has failed in considering that there are contradictions among witnesses and there is no proof of demanding extortion from the shop keepers. The counsel further submits that the court has relied on unreliable sources and the testimonies of interested witnesses in the case and no neutral witness testimonies were taken and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. The learned APP appearing on behalf of the state submits that there was a direct allegation against the plaintiffs and the lower court has rightly considered all the evidence in the matter and found the appellants guilty for the offense punishable under Sections 148, 387, 323, 353 read with section 149 of IPC there is no valid point in interfering with the order as all the evidence are rightly considered and as such this appeal is fit to be dismissed being devoid of merit. The court hearing the opposite submissions find that the appellants have caused hurt and have assaulted the witnesses and hence all the appellants are found guilty for the offenses punishable under sections 147, 323, and 353 read with section 149 of the IPC as decided by the lower court. The judgment of conviction passed by the learned trial court against the appellants is amended for the offenses punishable under sections 147, 323, and 353 read with section 149 of the IPC. No offense either under section 148 or under section 387 of IPC is proved hence the judgment of conviction is hereby set- aside and the appellants are hereby convicted for offenses punishable under sections 147, 323, and 353 read with section 149 of the IPC only. Further, it is decided that the mental and physical sufferings of the appellants are more unjust under the facts and circumstances of the case hence the appellant is allowed to be released on bail and the appeal is partly allowed.