NAUSHAD ANSARI Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel for the appellant and learned counsel for the State. The instant Criminal Appeal has been preferred against the judgment of conviction dated 24.9.2003 and order of sentence dated 25.9.2003 passed by Additional District & Session Judge, Dhanbad in Sessions Trial Case No. 640 of 1993 whereby the sole appellant Naushad Ansari has been convicted for offence committed u/ss. 109/307 and 307/34 I.P.C. and awarded rigorous imprisonment for five years for offence committed u/s. 307 I.P.C. but no separate sentence has been awarded for offence committed u/s. 109/307 I.P.C.

(2.) The prosecution case is based upon the fardbeyan of Rizwanul Haque (P.W. 3) recorded by S.I. Siraj Khan, Officer-in-charge of Topchanchi Police Station on 28.3.1988 at 22 hrs. in State Dispensary, Topchanchi, alleging inter alia that at around 9 P.M. informant Rafiq Ansari and Suleman Ansari (victim) were returning from the house of Rafiq Ansari after convening a panchayati. Suleman Ansari was ahead of the informant. After two minutes when the informant reached near the house of Safi Mian, the informant saw Nishar K. Ansari, son of Bali Md. and Naushad Ansari (appellant) son of late Yasin Ali. The accused were sitting near the door of Naushad Ansari, The informant has alleged that as soon as Suleman Ansari reached near the house of Naushad Ansari, Nishar Ansari and Naushad Ansari stand up and they started following Suleman Ansari. After 3-4 steps, Naushad shouted to fire at once, upon which Nishar Ansari took out his pistol from the shawl and fired upon Suleman Ansari on his back. At that time Nishar Ansari was at a distance of one and a half feet. Suleman said that Nisharwa and Naushadwa have killed him and fell on the ground and he started crying in pain. At the time of firing, Suleman was 10 feet ahead of the informant but the night was full moon night and the accused persons fled away towards the west. On alarm villagers assembled and Suleman Ansari was brought to Topchanchi Hospital. Informant has alleged that occurrence took place as father of Nishar and Suleman has some criminal litigation pending in the court and for this reason Nishar has fired upon Suleman from his pistol causing serious injury.

(3.) After investigation, the police submitted Charge-Sheet against both the named accused persons, Nishar Ansari and Naushad Ansari vide Charge-Sheet No. 67 dated 12.7.1988 u/ss. 326, 307, 109/34 I.P.C. and 27 of the Arms Act. That learned A.C.J.M., Dhanbad took cognizance of the offence vide order dated 18.7.1988 u/ss. 326/307/34 and 109 of the Indian Penal Code and 27 of the Arms Act and case has been transferred to the Court of learned Magistrate for commitment. On 14.12.1993, the case was committed to the court of sessions, and the charges has been framed against both accused u/ss. 109/307 and 307/34 on 15.5.1999 and Nishar Ansari has also been charged u/s. 27 of the Arms Act. Both the accused persons have pleaded not guilty and thus put up under trial.