Nizamuddin Ansari vs State Of Jharkhand

The petitioner has challenged the judgment dated 16.10.2015 in Criminal Appeal No.50 of 2013 by which his conviction in G.R No.651 of 2003 corresponding to T.R No.1679 of 2013 has been affirmed by the appellate court.

The petitioner along with other 26 persons were named accused in Dhanwar P.S Case No.64 of 2003.

The petitioner was one of the accused, out of 27 persons, against whom charges under section 147,148, 341, 342, 323, 427, 504, 506, 452 and 380 r/w section 149 I.P.C were framed in T.R No.1679 of 2013.

The informant of the case, namely, Bhuneshwar Thakur gave a written report on 20.04.2003 to the police. In his written report, the informant has alleged that in the intervening night of 19.04.2003/20.04.2003, at about 1.00 a.m, the accused persons were constructing a house over his land, comprised under Khata No.5, Plot No.1031 measuring about 17 decimals. It is the prosecution's case that during the investigation, the investigating officer has collected construction materials from the site. The informant has alleged that when he and his family members tried to stop the accused persons from raising construction on his land, they pelted stone and threatened to kill them.

During the trial, the prosecution has examined seven witnesses; the informant is P.W 2.

The investigating officer of the case has not been examined during the trial.

At this stage, it is relevant to record that 25 convicts came to this Court by filing different criminal revision petitions, one being Criminal Revision No.1498 of 2015 filed by 23 persons was dismissed in default. Criminal Revision No.1493 of 2015 filed by the convict namely, Sabdar Mian was allowed and he was released on bond of Rs.10000/-.

Mr. Indrajit Sinha, the learned counsel for the petitioner submits that foundation of the prosecution's case must fail, for the seizure-memo witnesses have not supported recovery of the construction materials from the site.

The informant or any other prosecution witness, except P.W 1, has not named the petitioner in their examination-in-chief. There has been a general allegation against all the accused persons who were sent-up for trial. The prosecution witness, namely, Jahali Devi, P.W 1, who has named the petitioner in her examination-in-chief, presumably to a suggestion by the defence that she was not an eye-witness, admits in her cross-examination that her statement was not recorded by the police.

Mr. Shekhar Sinha, the learned Public Prosecutor, however, submits that examination of the records would reveal that her statement was recorded in the case-diary.

Whether statement of Jahali Devi was recorded in course of investigation by the investigating officer or not cannot be examined by this Court, when the investigating officer of the case has not been examined during the trial. In law, the maker of the case-diary, that is, the investigating officer is required to be cross-examined in the context of the statement of P.W 1, when he was examined during the trial.

In the above state of affairs; admission of P.W 1 during her cross-examination that her statement was not recorded by the investigating officer, seizure of the incriminating articles has not been proved, except P.W 1 none of the witnesses, not even the informant, has named the petitioner in the court as a member of the unlawful assembly, I am of the opinion that the prosecution has failed to establish participation of the petitioner in the alleged occurrence.

In view of the aforesaid facts, I am inclined to grant benefit of doubt to the petitioner.

Accordingly, conviction of the petitioner, namely, Nizamuddin Ansari under section 147, 341, 342, 323, 506 and 452 r/w 149 I.P.C and sentence of R.I for six months for the offence under section 147 I.P.C, fifteen days S.I for the offence under section 341 I.P.C, three months R.I for the offence under section 342 I.P.C, three months R.I for the offence under section 323 I.P.C, six months R.I for the offence under section 506 I.P.C and Two years R.I and fine of Rs.1000/- for the offence under section 452 I.P.C and in default of payment of fine, R.I for one month inflicted upon him are set-aside.

The petitioner who is on bail is discharged of the liability of bail-bonds furnished by him.

Criminal Revision No.1478 of 2015 is allowed.

Consequently, I.A Nos.5831 of 2018 and 10418 of 2018 stand disposed of.