D.N. Patel, J. - (1.) These criminal appeals have been preferred by the original accused of Sessions Trail No. 90 of 2007 challenging the judgment of conviction and order of sentence passed by the Principal District & Sessions Judge, SeraikellaKharsawan, Seraikella dated 16th /17th May, 2012, whereby, these appellants have been convicted mainly for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof for imprisonment for life and fine of Rs.5,000/ each and in case of default, further simple imprisonment for 6 months has been awarded. These appellants have also been convicted for the offence punishable under Section 341 of the Indian Penal Code to be read with Section 34 thereof and they are sentenced to undergo simple imprisonment for one month. Both the sentences have been ordered to run concurrently.
(2.) The case of the Prosecution: The case of the prosecution is that on 29.03.2007 at 21:30 hours (i.e. 09:30 P.M) the informant Hamida Khatun (P.W7) gave farbeyan to police that today at 08.00 P.M. her father Abdul Mannan (deceased) was standing in front of his house and at that time her uncle Nasir Ansari (accused) came there and took her father towards the road side. After some time Hullah (Noise) was raised on that place then informant and her mother went running there and saw that Nizam Ansari @ Seikh Nizam was holding Kudal in his hand, Nasir Ansari @ Seikh Ansari was holding lathi in his hand, Gudu Ansari @ Gidu Ansari was holding Kudal in his hand and Sarrun was holding lathi in her hand and they were assaulting her father in front the house of Siraj. The informant further alleged that Gudu Ansari @ Gidu Ansari assaulted her father on head by Kudal due to which her father received head injury and blood was oozing out from his head and when they raised alarm, then the accused persons fled away. The informant further alleged the cause of occurrence that there was a government water supplying tap in front of her house from which they get water and the accused persons told them to close that water tap, but, they did not want to close the water tap because they get water from that tap. Due to this reason, the accused persons assaulted her father with intention to kill him. Eleven witnesses were examined by the prosecution: JUDGEMENT_23_LAWS(JHAR)12_2017_1.html
(3.) Arguments canvassed by the learned counsel for the appellants: • It is submitted by the learned counsel for the appellants that the prosecution has failed to prove the offence of murder, committed by these appellants, beyond reasonable doubt. Moreover, there are major omissions and contradictions in the depositions of the prosecution witnesses. • It is also submitted by the learned counsel for the appellants that the so called eye witnesses are in fact not the eye witnesses at all. All of them are close relatives of the deceased. Despite other witnesses were available, they were not examined by the prosecution witnesses because incident has taken place outside the house of the informant. • It is also submitted by the learned counsel for the appellants that even as per the case of the prosecution, Nasir Ansari @ Seikh Nasir (appellant no. 2 of Cr. Appeal No. 662 of 2012) had gone at the house of the deceased and he called the deceased for a meeting. There is no allegation that this Nasir Ansari @ Seikh Nasir was having any weapon in his hand. Thus, there was no intention of the accused persons to cause murder of the deceased. There was no premeditation and the action cannot be said to be preplanned and well designed. • It is also submitted by the learned counsel for the appellants that the weapons which are alleged in the hand of Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari, they have not caused any injury upon the body of the deceased, as per the medical evidence given by P.W.11. • It is also submitted by the learned counsel for the appellants that there is only one head injury by hard and blunt substance. In the medical evidence, P.W.11 has never stated that the injuries sustained upon the body of the deceased was capable of causing death of deceased in ordinary course of nature. Moreover, the case of Nasir Ansari is falling within Exception4 of Section 300 of the Indian Penal Code. Moreover, the death of the deceased has not taken place on the spot. He was referred from Ichagarh Hospital to M.G.M. Hospital at Jamshedpur and the death has taken place at Guru Nanak Hospital, that too after two days of occurrence. Thus, the case of Nasir Ansari @ Seikh Nasir is also covered by Section 304 PartII of the Indian Penal Code. Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari have been granted bail by suspension of sentence, whereas, Nasir Ansari @ Seikh Nasir is in judicial custody from approximately 10 years and 6 months. • It is also submitted by the learned counsel for the appellants that the motive, as alleged by the prosecution witnesses, is about water and water tap. Thus, there was no premeditation, no preplanned action on the part of the appellants, on the contrary, there were allegations against accused persons, whereas, no chargesheet has been filed against one of them. The other exaggerated version of the prosecution witnesses, if separated from truth, only allegations are against Nasir Ansari @ Seikh Nasir as stated hereinabove and his case is also falling within Exception4 of Section 300 of the Indian Penal Code and he is in judicial custody from 10 years and 6 months and, hence, at the highest he may be punished only under Section 304 PartII of the Indian Penal Code. Rest of two accused have not caused any injury upon the body of the deceases nor they had gone at the residence of the deceased to call him. There is no participation of Nizam Ansari @ Seikh Nizam and Gudu Ansari @ Gidu Ansari in causing death of the deceased which has taken place after two days of the occurrence and, hence, Cr. Appeal (DB) No. 650 of 2012 may kindly be allowed and Cr. Appeal (DB) No. 662 of 2012 may be allowed for Nizam Ansari @ Seikh Nizam and so far as Nasir Ansari @ Seikh Nasir is concerned, his case is covered under Section 304 PartII of the Indian Penal Code at the highest, otherwise, even for Nasir Ansari @ Seikh Nasir looking to the F.I.R. and other depositions of the prosecution witnesses, there are also major omissions and contradictions.;