Jharkhand High CourtNafil Ansari vs The State Of Jharkhand ..... Opp. Party on 26 September, 2018Author:Anant Bijay SinghBench:Anant Bijay SinghCr. Revision No. 182 of 2003
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             (Against the judgment dated 21.12.2002 passed by learned
             Additional District & Sessions Judge, Lohardaga in Cr. Appeal No. 60
             of 1998)

             1.Nafil Ansari
             2.Rojamat Ansari
             3.Khairat Ansari
             4.Chnu @ Mahiruddin Ansari
             5.Ibrahim Ansari
             6.Ikbal Ansari                       ..... Petitioners
                                     Versus
             The State of Jharkhand               ..... Opp. Party
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             For the Petitioner      : Mr. P.P.N. Roy, Sr. Advocate.
                                        Mr. Pandey Ashok Nath Roy, Advocate.
             For the State           : A.P.P.
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                                     PRESENT
                   HON'BLE MR. JUSTICE ANANT BIJAY SINGH
                                    ........
                                  JUDGMENTAnant Bijay Singh, J.     Initially, the instant criminal revision was filed on
             behalf of the eight petitioners, namely, Jahangir Ansari, Nafil
             Ansari, Jaffar Ali Ansari, Rojamat Ansari, Khairat Ansari, Chnua
             @ Mahiruddin Ansari, Ibrahim Ansari and Iqbal Ansari, being
             aggrieved and dissatisfied with the judgment dated 21.12.2002
             passed in Cr. Appeal No. 60 of 1998 by Sri B.Z. Ansari, learned
             Additional District & Sessions Judge, Lohardaga whereby and
             whererunder the learned Additional District and Sessions
             Judge, Lohardaga dismissed the appeal preferred by the
             petitioners and confirmed the judgment of conviction and
             sentence dated 29.04.1998 passed by Sri Shyam Sundar Ray,
             learned Assistant Sessions Judge, Lohardaga in S.T. No.
             660/1991, T.R. No. 5/1992 whereby the learned Assistant
             Sessions Judge, Lohardaga had convicted the petitioners undersection 307of the Indian Penal Code and further convicted six
             petitioners namely, Jahangir Ansari, Nafil Ansari, Jaffar Ali
             Ansari,    Rojamat   Ansari,   Khairat   Ansari   and   Chnua     @
             Mahiruddin Ansari undersection 147of the Indian Penal Code
             and further convicted the petitioners namely Ibrahim Ansari
             and Ikbal Ansari undersection 148of the Indian Penal Code
             and undersection 25(1-B) (a) of theArms Act. The learned
             court below however, sentenced all the petitioners to undergo
             R/I for 5 years undersection 307of the Indian Penal Code,
             further, sentenced the petitioners namely Jahangir Ansari, Nafil
             Ansari, Jaffar Ali Ansari, Rojamat Ansari, Khairat Ansari and
             Chnua @ Mahiruddin Ansari to undergo R.I for 6 months under-2-section 147I.P.C and two petitioners namely, Ibrahim Ansari
and Iqbal Ansari to undergo R.I for 1 year undersection 148of
the Indian Penal Code and further sentenced these two
petitioners namely, Ibrahim Ansari and Ikbal Ansari to undergo
R.I for two years undersection 25(1-B) (a) of theArms Actand
all the sentences were directed to run concurrently.This criminal revision has been filed on 27.02.2003 and
under order dated 05.03.2003 the criminal revision has been
admitted and during pendency of the application, petitioners
were admitted on bail and LC.R was called for.It appears that during the pendency of this criminal
revision petitioner- Jahangir Ansari has died on 23.03.2005 and
petitioner Jaffar Ali Ansari has died on 05.08.2011 thereafter
under order dated 21.06.2018 the name of petitioner- Jahangir
Anari and petitioner Jaffar Ali Ansari was ordered to be deleted.Now the criminal revision application is confined to the
remaining six petitioners.Learned counsel for the petitioners has submitted that
that petitioners have been held guilty undersection 307I.P.C
simplicitor and sentenced to undergo R.I for five years and this
fact is reflected in the evidence of P.W.7 who has received
injury, but the trial court did not frame the charge undersection 307/34I.P.C and in alternative undersection 307/149I.P.C and this fact has not been considered either by the trial
court or by the appellate Court. Further, it has been submitted
that both the courts below have failed to consider the
statements of the petitioners recorded undersection 313Cr.P.C. So, considering the aforesaid facts, the conviction is not
sustainable and the impugned judgment is liable to be set-
aside.Learned counsel for the petitioners further relied on the
evidence of P.W.-12 Dr. J.E. Tigga, who has examined the injured
Alam Ansari, but he did not found any grievous injury, rather he
has found the injury as follows:(i)     Slightly restricted movement of neck due to
             pain. No external injury.(ii)    Pain on the occipital region on the head on
             applying pressure.(iii)   Pain   all   over   the   back,   Restriction   of
             movement of shoulder plate.-3-It is submitted that the cause of injuries is kick and fist
blows and the nature of injury was found to be simple. It was
submitted that prima facie both the courts have failed to
consider the fact that the injuries are simple in nature and not
on the vital parts. So offence underSection 307of the I.P.C. is
not made out.Learned APP has opposed the prayer and submitted that
there is concurrent findings of both the courts below.Learned counsel for the petitioners further submitted that
petitioners namely, Ibrahim Ansari and Ikbal Ansari were also
held guilty underSections 25(1-B)a of theArms Actfor
recovery of one pistol and one cartridge, but no blastic expert
has been examined bringing on record the fact of effectiveness
of the arms recovered, although prosecution has examined 16
witnesses and this fact has not been controverted by learned
APP.After hearing the parties and on careful perusal of the
records and evidences, I find considerable force in the
submission of the learned counsel for the petitioners that both
the courts below have failed to exercise their jurisdiction
vested upon them.After scrutiny of the evidence, it transpires that P.W.-12
Doctor, has found the injuries to be simple in nature and not on
the vital parts of the injured. Both the courts below have also
considered the fact that no expert has been examined in the
case to establish the effective working condition of the arms
recovered. So the conviction of the petitioners namely, Ibrahim
Ansari and Ikbal Ansari cannot sustained.Accordingly, conviction and sentence of all the petitioners
underSection 307of the I.P.C. and conviction and sentence of
petitioners Ibrahim Ansari and Ikbal Ansari underSections
25(1-B)a of theArms Actare hereby set aside.However, I find that the petitioners namely, Nafil Ansari,
Rojamat Ansari, Khairat Ansari and Chnua @ Mahiruddin
Ansari have been rightly convicted and sentenced for the
offence underSection 147of the I.P.C. and petitioners namely,
Ibrahim Ansari and Ikbal Ansari have been rightly convicted
and sentenced underSection 148of the I.P.C., by the trial court
and upheld by the appellate court. So, the conviction of the
petitioners namely, Nafil Ansari, Rojamat Ansari, Khairat Ansari-4-and Chnua @ Mahiruddin Ansari underSection 147of the I.P.C.
and conviction of the petitioners namely, Ibrahim Ansari and
Ikbal Ansari underSection 148of the I.P.C. are maintained.From perusal of the record, it further transpires that four
petitioners namely, Nafil Ansari, Rojamat Ansari, Khairat Ansari
and Chnua @ Mahiruddin Ansari have remained in jail custody
from 24.04.1991 to 29.04.1991 (11 days), 29.04.1998 to
14.05.1998 (15 days) during trial and from 25.02.2003 to
05.03.2003 (08 days) after conviction i.e. for total 35 days. The
petitioner Ibrahim Ansari has remained in jail custody for a
total period of 04 months & 5 days and petitioner Ikbal Ansari
has remained in jail custody for a total period of 02 months &
05 days and all the petitioners have also suffered the rigours of
the trial since 1991 i.e. for about 27 years.So, justice would met, if the sentence of the petitioners is
reduced to the period already undergone by them.Under    the     circumstances,    this   criminal   revision   is
dismissed with modification in the sentence of the petitioners
awarded by the trial court and upheld by the appellate court to
the period already undergone by them.The petitioners are discharged from the liabilities of their
bail bonds.Let the LCR be transmitted to the court below forthwith.(Anant Bijay Singh, J.)
Jharkhand High Court
Dated/26/09/2018
Sunil/