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1 1 Cr. Appeal(DB) No.1679 of 2003 WITH Cr. Appeal (DB) No of 2003 WITH Cr. Appeal (DB) No of 2003 WITH Cr. Appeal (DB) No of [Against the judgment of conviction and order of sentence dated passed by Additional District and Sessions Judge, Fast Track Court, Lohardaga, in Sessions Trial No.428 of 1997] In Cr. Appeal (DB) No.1679 of 2003 Azad Ansari son of Maqbool Ansari, resident of Village Arkosha, P.O., P.S. and District Lohardaga. Appellant -versus- The State of Jharkhand Respondent In Cr. Appeal (DB) No.1547 of Maqbool Ansari son of Sadul Ansari 2. Sajad Ansari son of Maqbool Ansari 3. Imtiaz Ansari son of Maqbool Ansari All residents of Village Arkosa, P.S. Lohardaga, District Lohardaga Appellants -versus- The State of Jharkhand Respondent In Cr. Appeal (DB) No of 2003 Mustafa Ansari son of late Suleman Ansari, resident of Village Arkosa Barkatoli, P.S. & District Lohardaga. Appellant -versus- The State of Jharkhand Respondent In Cr. Appeal (DB) No.1568 of Muntzir Ansari son of Rahmuddin Ansari 2. Jalil Ansari son of Siyasuddin Ansari Both residents of Village Arkosha, Barka Toli, Post Office Lohardaga, Police Station and District Lohardaga. Appellants -versus- The State of Jharkhand Respondent For the Appellants : Mr. B.M. Tripathy, Sr. Advocate Mr. Navin Kumar Jaiswal, Advocate For the Respondent : Mr. Shekhar Sinha, A.P.P. ---

2 2 PRESENT HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE APARESH KUMAR SINGH Dated : 20 th of March, 2015 Per Virender Singh, C.J. Vide our short order of even date, Cr. Appeal (D.B.) No of 2003 stood partly allowed, whereas remaining three Criminal Appeals are allowed acquitting all the appellants therein. We shall now enter into a detailed judgment. 2. In all seven accused, namely, Maqbool Ansari, Sazad Ansari, Azad Ansari, Imtiaz Ansari, Mustaffa Ansari, Muntzir Ansari and Jalil Ansari, faced trial for the charge of Sections 302/149, 323/149, 148 and 147 IPC for allegedly committing the murder of one Budhdev Oraon and causing simple injuries to P.Ws. Chandradev Oraon and Sukhdev Oraon and stand convicted for the aforesaid charge vide impugned judgment of learned Additional Sessions Judge, Fast Track Court, Lohardaga dated / They are sentenced as under:- Rigorous imprisonment for life and R.I. of six months u/s 302/149 and 323/149 of the Indian Penal Code respectively. Azad Ansari, Imtiaz Ansari and Jalil Ansari are further sentenced to undergo R.I. of 2 (two) years u/s 148 of the IPC and Maqbool Ansari, Sazad Ansari, Mustaffa Ansari and Muntzir Ansari are sentenced to undergo R.I. for 1 (one) year u/s 147 of the Indian Penal Code. All the sentences are ordered to run concurrently. 3. Aggrieved of the impugned judgment, the aforesaid seven accused have filed their separate appeals viz. Cr. Appeal (DB) No of 2003 by Azad Ansari only, Cr. Appeal (DB) No.1547 of 2003 by Maqbool Ansari,

3 3 Sazad Ansari and Imtiyaz Ansari, Cr. Appeal (DB) No.1548 of 2003 by Mustafa Ansari only and Cr. Appeal (DB) No of 2003 by Muntzir Ansari and Jalil Ansari. This is how, all the four appeals have been clubbed for their final consideration. 4. At the very outset, it has been brought to our notice that Maqbool Ansari, one of the appellants in Cr. Appeal (DB) No of 2003 has since died. Thus, the said appeal abates qua him and survives qua two others. He was on bail. Except Azad Ansari, who by now has undergone about 14 years of substantive sentence and languishing in jail since the date of his initial arrest in this case, all other accused are on bail. This primarily is the reason for taking up these appeals giving priority to incarceration period of one of the accused (Azad Ansari). 5. Deceased in this case is Budhdev Oraon, father of P.W. Chandradev Oraon, the first informant and P.W. Sukhdev Oraon. The date of occurrence is at p.m. Place of occurrence is village Arkosa. Exact place where the incident has allegedly taken place is near the house of accused Maqbool Ansari (now dead) and commonly known as Tangar (a hillock). The time of supplying of information to the concerned police (Police Station Lohardaga) by P.W. Chandradev Oraon is at about p.m. The distance of the place of occurrence and the Police Station Lohardaga is 7 k.m. The special report reached Ilaka Magistrate on Admittedly, there is no time given by the concerned Judge of receipt of the special report. It appears to us that the Ilaka Magistrates are to be imparted training in this regard in a Working Session to be held by Judicial Academy as time of reaching of the Special Report in certain cases can change the entire complexion of the case and at times, may prove fatal for the prosecution, depending upon the facts of

4 4 an individual case. Investigating agency should also know the importance of sending the special report to the Ilaka Magistrate. 6. P.W. Chandradev Oraon alleges that on , at about p.m., his brother P.W. Sukhdev Oraon was passing from Tangar (place near the house of accused Maqbool Ansari) and asked Maqbool Ansari as to why he had given his whereabouts to one Dilip Singh, to whom he owed some amount for the loan of fertilizer taken by him, upon which there ensued some altercation between both of them. It is alleged that at that time Maqbool Ansari was holding a Lathi in a hand and he gave a Lathi blow to Sukhdev Oraon. It is then alleged that accused Sazad Ansari armed with Lathi, Azad Ansari with Tangi (Axe), Imtiaz Ansari with Sabbal (a pointed weapon) came there and then accused Mustaffa Babua with Lathi, Muntzir Ansari with Lathi and Jalil Ansari with Bhujali also assembled there. It is then the case of the prosecution that in the mean time deceased who was returning from his fields on hearing alarm (in common parlance Hullah ) and he (first informant) rushed towards the place of occurrence from the side of the Tank and tried to rescue P.W. Sukhdev Oraon on which all the aforesaid accused persons started assaulting them. P.W. Chandradev Oraon, then attributes individual act of accused Azad Ansari giving a Tangi blow on the head of deceased, consequently blood started oozing from the head. Thereafter, all the accused persons started assaulting the informant side and injured them. When certain villagers reached the spot, the accused fled away from the scene of occurrence. Deceased was brought to Sadar Hospital, Lohardaga, where he died. P.W. Sukhdev Oraon, however, was not with the deceased and this appears to be the reason that he was examined by P.W. Dr. M.M. Sengupta on , whereas P.W. Chandradev Oraon

5 5 was medically examined on the date of occurrence itself at 11 p.m. by the same doctor. Autopsy on the body of the deceased was conducted on the following date of occurrence, i.e., After the registration of the formal F.I.R. investigation of the present case was conducted by P.W. Dhananjay Singh and on its culmination, all the seven accused were put to trial, who have now suffered conviction and sentence as stated hereinabove. 7. Prosecution in support of its case has examined as many as seven witnesses. However, the case of the prosecution is hinging on the statement of P.Ws. Chandradev Oraon and Sukhdev Oraon, only, they being the eye witnesses to the occurrence and injured as well. 8. Before we start our exercise for rescanning of the evidence of the aforesaid two main witnesses, it would be relevant to note that the deceased Budhdev Oraon had received as many as three injuries on his persons. Incidentally all the injuries are on the right side. Injury No.1 has resulted into the fracture of right parietal size i.e., 2 x 1. This has resulted into bone fracture and declared fatal. It is lacerated wound. The other two injuries on the right side are superficial in nature i.e. abrasion on the right upper chest and swelling of right arm. 9. In the opinion of the doctor, who conducted the autopsy on the body of the deceased, the death was caused by hard and blunt substance, may be by blunt and heavy portion of axe. Injuries on the persons of P.W. Sukhdev Oraon and Chandradev Oraon are declared simple in nature caused by blunt weapon and that appears to be the reason of conviction of all the accused under Sections 323/149 IPC. 10. Head learned counsel for both the sides and gone through the record.

6 6 11. From the entire gamut of prosecution evidence, especially, from the evidence of two main witnesses, namely, P.W. Chandradev Oraon and P.W. Sukhdev Oraon, the sons of the deceased, what appears is that the occurrence had started at the behest of P.W. Sukhdev Oraon only and not from the side of accused. It is P.W. Sukhdev Oraon, who was passing in front of the house of accused Maqbool Ansari (dead), and raised protest to him (Maqbool Ansari) as to why he had given his (Sukhdev Oraon s) whereabouts to one Dilip as he had to realize loan amount from him and this is how the altercation ensued. By any stretch of imagination, it cannot be said that the accused side was in know of the fact that P.W. Sukhdev Oraon would come to make a protest to accused Maqbool Ansari so as to give them any time to form an unlawful assembly. Another fact, which is equally important is that the complainant and the accused side are staying in the same vicinity. It is in this factual backdrop, applicability of Section 149 I.P.C. is to be appreciated. 12. What appears from the evidence is that the accused party had never assembled at the place of occurrence in one phase, rather had come in parts. Similarly, it is P.W. Sukhdev Oraon, who had reached the place of occurrence initially and then P.W. Chandradev Oraon reached there and in the same process the deceased had reached the place of occurrence. It is when the deceased intervened to save P.W. Sukhdev Oraon, he was assaulted by accused Azad Ansari, who was armed with an axe. 13. We are conscious of the fact that although an attempt has been made by these witnesses to involve other accused also stating that the deceased was given injuries by other accused, but no overt act has been attributed to any of the remaining accused. It is in this context, injuries on

7 7 the person of the deceased, described hereinabove, assume importance. Except Injury No.1, which has landed on the head of the deceased and resulted into a lacerated wound, which, in the opinion of the doctor of autopsy, could be because of heavy arm like axe used from its reverse side, other two injuries are just superficial in nature, that too on the same side of injury No.1, i.e., right side. These injuries could be possible by fall. So it is only injury No.1, which, ultimately, proved to be fatal and attributed to Azad Ansari has to be kept in mind while appreciating the prosecution case in its right perspective so as to find out whether it is a case in which Section 147 IPC, Section 148 IPC or for that matter Section 149 IPC are attracted or not. 14. One other important aspect, which the Court cannot lose sight of, is that it has come in the statement of the star witnesses to the occurrence that they were also booked in a cross case with regard to the same occurrence. One of the witness has rather stated that he was arrested from the hospital itself by the police. It has also come in the statement of P.W. Dhananjay Singh, the Investigating Officer that a cross case bearing F.I.R. No.109/95 was registered against the complainant party. Accused Azad Ansari, when examined under Section 313 Cr.P.C., had also taken a plea that the complainant side had assaulted him and injured him for which a case was filed against the complainant party. Admittedly, the accused side has not brought any documentary evidence, vis-à-vis the injuries received by any of the accused, especially accused Azad Ansari, who happened to be the author of the main injury on the person of the deceased, which, ultimately, proved to be fatal, which aspect has been fairly admitted by Mr. Tripathi, learned Senior Advocate, during the course of arguments, but, certainly the evidence available on record is that a

8 8 cross case was registered against the complainant party with regard to the injuries received by the accused side in this very occurrence and they were also booked in this case. What ultimately happened to that separate FIR, however, is not brought on record. 15. Visualising all these aspects in totality, keeping in mind that the occurrence had originated when P.W. Sukhdev Oraon had raised a protest to accused Maqbool Ansari (dead) and then the accused allegedly assembled at the scene of occurrence, one can very comfortably make out that it is a case in which both the sides, who are staying in the same vicinity, assembled at a particular place known as Tangar (a hillock) near the house of accused Maqbool Ansari and started assaulting each other. In a manner, it was a sort of free fight between two sides, which originated from the complainant side only, attributing no specific overt act to any of the accused except one injury attributed to accused Azad Ansari with an axe, that too when the deceased, after hearing Hullah, reached the place of occurrence, while coming from his fields. 16. It is well settled that before convicting accused with the aid of Section 149 IPC, the Court must give clear findings regarding the nature of common object and that the object should be unlawful. In the absence of any such findings and also any overt act on the part of the accused persons, merely they are armed with some weapons, would not be sufficient to prove common object. Section 149 IPC creates a specific offence and deals with the punishment of that offence. Therefore, a clear finding regarding the common object of the assembly must be given and the evidence available on record must show not only the nature of common object, but also that the object was unlawful. In the present case, as stated above, from the evidence available on record, it appears that it

9 9 was a sort of free fight between two sides without any common object of committing the murder of deceased Budhadev Oraon, who, incidentally intervened, therefore, each individual accused has to be held responsible for his individual act and when even that aspect is also not established on the record, in that eventuality, all the accused, except any individual accused to whom specific overt act is attributed, will be benefitted. 17. We, after appreciating the present case on the touch stone of the aforesaid settled legal position, are of the considered view that it is a case in which neither Section 147 IPC is attracted, nor Section 148 IPC or for that matter even Section 149 IPC to hold the conviction of all the accused as already recorded by the learned Trial Court. Not only that, none of the accused can be convicted even under Section 323 IPC for the reason that no specific overt act is attributed to any individual accused bringing his individual case within the mischief of Section 323 I.P.C. Resultantly, all the accused deserve to be acquitted for the offence punishable under Section 147 IPC, Section 148 IPC, Section 302 read with Section 149 IPC and Section 323 read with Section 149 IPC. Ordered accordingly. 18. Let us come now to the individual part attributed to accused Azad Ansari, who was armed with axe and used it from its reverse side causing lacerated wound on the head of the deceased resulting in to fracture of bones, which, ultimately, proved to be fatal. There is categoric evidence with regard to the overt act attributed to accused Azad Ansari, which fact is also admitted by Mr. Tripathi, learned Senior Advocate. However, his attempt was to dilute the offence of Section 302 IPC to Section 304 Part II IPC. We, after taking into consideration the entirety of facts, the weapon used by him, the seat of injury on the person of the deceased, are of the considered view that his case, which, undoubtedly, in the present set of

10 10 circumstances, would certainly not attract Section 302 IPC, would be one falling under Section 304 Part I IPC and not 304 Part II IPC as contended by Mr. Tripathy, learned Senior Advocate. Conviction of accused Azad Ansari is, thus, diluted to Section 304 Part I IPC. He is stated to be in custody for the last more than 14 years and in our considered view, the period already served by him, would meet the ends of Justice for the altered conviction of Section 304 Part I IPC. Ordered accordingly. 19. Accused Azad Ansari shall be released from jail forthwith, if not required in any other case. Remaining 5 accused are stated to be on bail. They shall stand discharged of their bail bonds. 20. The net result is that the instant appeal [Cr. Appeal (DB) No.1679 of 2003] stands partly allowed in the aforesaid terms, whereas other three appeals [Cr. Appeal (DB) No.1547 of 2003 filed by Maqbool Ansari & Others; Cr. Appeal (DB) No.1548 of 2003, filed by Mustafa Ansari; and Cr. Appeal (DB) No of 2003 filed by Muntzir Ansari & Another] are allowed acquitting all the accused. 21. All the four appeals, on hand, stand disposed of accordingly. 22. An intimation shall be sent to the Jail Authority without any delay. Trial Court shall also be intimated of the outcome of all the four appeals. Trial Court Records shall be remitted to the Trial Court. (Virender Singh, C.J.) High Court of Jharkhand, Ranchi Dated, the 20 th of March, 2015 LAK/Shamim/Amardeep (Aparesh Kumar Singh, J.)