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IN THE HIGH COURT OF JHARKHAND AT RANCHI
(CRIMINAL APPELLATE JURISDICTION)
Criminal Appeal (DB)(V) No. of 2023
IN THE MATTER OF:
An appeal under S.372 -
proviso of the Code of
Criminal Procedure;
AND
IN THE MATTER OF:
Aman Kumar, aged about 23 years, son of Shri. Manohar
Kumar, resident of Loco Colony, Railway Quarter No. O/18/4,
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P.O. & P.S.- Chakradharpur, District- West Singhbhum,
Jharkhand- 833102.
…Appellant
Versus
1. Md. Shahrukh @ Sumun @ Suman, aged about 27 years,
son of Md. Mustak, resident of Village- Main Road near
Urdu School Town, P.O. & P.S.- Chakradharpur, District-
West Singhbhum, Jharkhand;
2. Bakhtiyar Ali, aged about 26 years, son of Mukhtar Ali,
resident of Village- Imambara Road, Ward No.06, P.O. &
P.S.- Chakradharpur, District- West Singhbhum, Jharkhand;
…Contesting respondents
3. The State of Jharkhand. …Proforma respondent
To,
The Hon’ble Mr. Justice Sanjaya Kumar Mishra, the Chief
Justice of the Hon’ble Jharkhand High Court at Ranchi and
His Other Companion Hon’ble Judges.
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The humble appeal on behalf
of the appellant- victim.
Most respectfully sheweth:-
1. That this is an appeal on behalf of the victim as against
the judgement dated 12.6.2023 and the order of
sentence dated 16.6.2023 passed by Ms. Kalpana
Hazarika, Additional Sessions Judge – IV, Chaibasa,
West Singhbhum in Sessions Trial Number 263/2021
(arising out of Chakradharpur P.S. Case number
96/2020) to the extent the accused Md. Shahrukh and
Bakhtiyar Ali have been acquitted of the charge under
sections 302/34, 307/34 and 326, IPC and Bakhtiyar
Ali has been acquitted of charge under section 324, IPC
and both have instead been convicted for the lesser
offences, viz., Md Shahrukh for S.304 Part-II, IPC and
Bakhtiyar Ali under section 341,323, IPC.
2. That the appellant has not moved this Hon’ble Court
earlier for the self-same relief.
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No application or petition pending or disposed of,
arising out of the said PS case or ST case has been
preferred by the appellant earlier before this Hon’ble
Court.
3. That appellant has got the locus standi as victim to
prefer this appeal. He is the informant in the FIR as well
as brother of the deceased victim namely Saurav
Kumar.
4. That the charge was framed as against the two accused
persons namely Md. Shahrukh @ Sumun and Bakhtiyar
Ali for committing offences under sections 341/34,
323/34, 324/34, 326, 307/34 and 302/34 of the Indian
Penal Code. The occurrence in question is the attack
upon the deceased Sourav Kumar and the injured
witness Aman Pandey at the hands of the two
assailants, which led to registration of F.I.R.as
Chakradharpur P.S. Case No. 96/2020. After
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registration of the FIR, in course of treatment Sourav
Kumar died.
In the trial it came that the assailants had attacked
upon the deceased and the injured only because they
had warned in the past that victims should not visit
through that area/road because it was the area of the
assailants and despite that the victims had dared to
pass through the concerned public road and upon
being challenged they protested. The elements like
motive/past animosity and sharing of common
intention on the part of both the police as also the fact
that both were possessed of the requisite intent, were
duly proved in the trial.
The trial led to pronouncement of the impugned
judgement dated 12.6.2023 by the Learned Sessions
Judge, followed by sentence. For the factual narrations
with regard to records of the case the appellant is
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borrowing and adopting the contents of the impugned
judgement of the learned trial court.
Being aggrieved by and
dissatisfied with the judgement
dated 12.6.2023 and the order of
sentence dated 16.6.2023 passed
by Ms. Kalpana Hazarika,
Additional Sessions Judge – IV,
Chaibasa, West Singhbhum in
Sessions Trial Number 263/2021
(arising out of Chakradharpur P.S.
Case number 96/2020) to the
extent the accused Md. Shahrukh
and Bakhtiyar Ali have been
acquitted of the charge under
sections 302/34, 307/34 and
326, IPC and Bakhtiyar Ali has
been acquitted of charge under
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section 324, IPC and both have
instead been convicted for the
lesser offences, viz., Md Shahrukh
for S.304 Part-II, IPC and
Bakhtiyar Ali under section
341,323, IPC, the appellant begs to
prefer this appeal on, amongst
others, the following,
GROUNDS
A. For that the impugned judgement suffers from gross
errors of law and facts.
B. For that the impugned judgement suffers from
perversity.
C. For that the appellant being brother and family
member of the deceased Saurav Kumar, who has been
killed, is the victim, who has suffered injustice.
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D. For that the accused Md. Shahrukh ought to have been
held guilty for the offence of murder punishable under
section 302, IPC or/and 302/34, IPC
E. For that the accused Bakhtiyar Ali ought to have been
held guilty of sharing common intention for the
causation of homicide and accordingly for the offence
under section 302 read with section 34 of the IPC.
F. For that each of the two accused ought to have been
held to have shared common intention and it ought to
have been held that the criminal acts done by each of
them was in furtherance of the common intention of
both.
G. For that the accused Md. Shahrukh ought to have been
held to have caused death of the deceased Sourav
Kumar with the intention of causing death as also with
the intention of causing such bodily injury as was
sufficient in the ordinary course of nature to cause
death.
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H. For that it ought to have been appreciated that
intention means the desire to do an act despite
knowledge of consequence thereof, and in the facts and
circumstances of the present case the evidences, both
direct and circumstantial, clearly suggested that the
assailant while giving knife blows was not only aware
of the consequences of his act but also aimed at
accomplishing the consequence, namely giving an end
to the life of the victim.
I. For that it ought to have been held that the accused Md.
Shahrukh while stabbing the deceased knew that his
act was so imminently dangerous that it must, in all
probability, cause death and such bodily injury as was
likely to cause death, more so as multiple blows of
stabbing were inflicted, which meant that while
inflicting each successive blow the assailant was aware
that the victim was already labouring under the injury
inflicted by the preceding blow(s), and the commission
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of such act being without any excuse for incurring the
risk of causing death and of causing such injury, the
accused was liable to be held guilty of murder.
J. For that the accused persons who are liable to be held
guilty of having committed murder, sharing common
intention, ought to have been punished with capital
sentence.
K. For that both the accused persons ought to have been
held guilty of having attempted to commit murder of
Aman Pandey and having shared common intention in
furtherance whereof the act was done.
L. For that it ought to have been appreciated that the
settled principle of law that common intention within
the meaning of section 34 of the Indian Penal Code can
develop at the spot or during the course of an
occurrence.
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M. For that the acquittal under sections 302, 307, 326 324
304- Part-I of the Indian penal code ought not to have
been pronounced.
N. For that injustice has been meted out to the victims,
including the deceased, the injured and their respective
family members, by pronouncing acquittal in favour of
each of the two accused in one or other sections of IPC
and by convicting them for lesser offences than those
they were charged for.
O. For that each and every section of IPC, which one or
other of the two accused persons had been charged for,
ought to have been held to have been established in the
trial.
P. For that it ought to have been appreciated that the
statement of the PW-1 Aman Kumar was a direct
evidence and not hearsay evidence on the fact in issue,
namely whether Prakash Kumar and Deepak Kumar,
who had been the eyewitnesses to the occurrence, had,
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immediately after what they had witnessed, stated
before him about the victims having been attacked and
injured by the accused persons; and such direct
evidence ought to have been pressed into service as res
gestae, which is a legally recognised exception to the
rule of hearsay.
Q. For that the evidence of PW-1 Aman Kumar with regard
to having seen while going towards the place of
occurrence, that out of the two assailants/accused,
each was having a knife in his hand, while both were
running away, was a direct evidence about the
possession of weapon by each of the accused, and an
important circumstantial evidence to be used as against
each of them.
R. For that the evidence of the PW-1 Aman Kumar with
regard to the deceased Saurabh having told him that
Bakhtiyar Ali and Mohammed Shahrukh having injured
him by knife and that they were saying that he should
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be killed, is direct evidence to prove the dying
declaration of Saurav.
S. For that the judgement of the learned trial court suffers
from perversity in recording the finding that no motive
or enmity was proved.
T. For that the PW-2 Aman Pandey being the injured
witness was the best witness who proved the intention
to kill, the sharing of common intention, the motive and
pre-existing animosity/ grudge on part of each of the
two assailants and as against both the victims.
U. For that the PW-2 clearly stated about one transaction
comprising of:-
(i) the assertion made by both the assailants
(Shahrukh as well as Bakhtiyar) about having
given warning in the past not to visit through the
area concerned (a good evidence of motive, prior
enmity etc. and of sharing of common intention),
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(ii) the assertion of Shahrukh that he hit him
because despite such warning they had dared to
pass through that road,
(iii) The knife blow having been given on his
chest by Shahrukh upon this witness having
asserted that the road was meant for all,
(iv) The assertion made by Shahrukh about
killing them,
(v) Such assertion being made in the same
transaction after having given multiple knife
blows upon Saurav,
(vi) Bakhtiyar having exhibited his undignified
attacks upon one already down with knife injury.
V. For that the PW-3 Deepak Kumar Prasad had given
evidence of an eyewitness about the assertions made
by the assailant to show the past transaction as to the
cause of attack, thereby furnishing the motive and
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establishing the pre-existing animosity which led to
commission of the offence.
W.For that the evidence of the PW-3 with regard to
conduct of Bakhtiyar furnished good evidence of his
sharing common intention with the co-accused
Shahrukh.
X. For that the evidence of PW-3 also supported the set
about the conduct of Mohammed Shahrukh, in giving
multiple blows by knife and in making assertions that
he will kill.
Y. For that the evidence of PW-4 Prakash Kumar also gave
eyewitness account with regard to the assertions and
attack made by one or other accused, which would
clearly establish the motive, the animosity, the
gruesome manner of attack, particularly infallible from
the multiple injuries given by knife by one and the
blows given by the other despite the victim having
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falling to the ground out of the knife injury made on
chest.
Z. For that the evidence of PW-5 Bhushan Prasad ought to
have been used as direct evidence of the dying
declaration made by the deceased Sourav Kumar.
AA. For that the evidence of PW-6 Raghuvansh
Narayanan also ought to have been likewise treated as
direct evidence on the dying declaration by the
deceased in the hospital.
BB. For that the evidence of PW-7 Ranjit Kumar too
should have been treated as direct evidence as to the
dying declaration made by the deceased in the hospital.
CC. For that the learned trial court has grossly erred
in not appreciating that the causation of death due to
cardiac arrest, if any, did not absolve the assailant of the
liability of causing death, in as much as the act of
stabbing was the sine qua non as well as the sine causa
causans for the happening of death.
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DD. For that the number and nature of injuries spoke
for themselves, and each of the two assailants ought to
have been held guilty of causing death with an
intention to cause death, while sharing common
intention within the meaning of section 34 of the
Indian Penal Code.
EE. For that the learned trial court grossly erred in
not appreciating the explanation appended by the
legislature to the main text of section 299, IPC from
which it would be clear that even though the death
happened in course of or after the operation which was
conducted in course of treatment of the victim of stab
injuries, the same would make no difference to the
liability of the assailant in relation to the consequence
in the nature of death of the victim.
FF. For that the other and further grounds shall be
urged at the time of hearing.
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It is, therefore, humbly prayed
that this Hon’ble Court may
graciously be pleased to admit
this appeal, issue notice, call for
the records of the case, and upon
hearing the parties be pleased to
set aside the judgement dated
12.6.2023 and the order of
sentence dated 16.6.2023 passed
by Ms. Kalpana Hazarika,
Additional Sessions Judge – IV,
Chaibasa, West Singhbhum in
Sessions Trial Number 263/2021
(arising out of Chakradharpur P.S.
Case number 96/2020) to the
extent the accused Md. Shahrukh
and Bakhtiyar Ali have been
acquitted of the charge under
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sections 302/34, 307/34 and
326, IPC and Bakhtiyar Ali has
been acquitted of charge under
section 324, IPC and both have
instead been convicted for the
lesser offences, viz., Md Shahrukh
for S.304 Part-II, IPC and
Bakhtiyar Ali under section
341,323, IPC.
AND/ OR
Pass such other or further orders
as may be deemed fit and proper.
For this the Appellant shall ever pray.
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AFFIDAVIT
I, Aman Kumar, aged about 23 years, son of Shri. Manohar
Kumar, resident of Loco Colony, Railway Quarter No. O/18/4,
P.O. & P.S.- Chakradharpur, District- West Singhbhum,
Jharkhand- 833102., do hereby solemnly affirm and state as
follows:
1. That I am the appellant- victim in this case and as such I am
well acquainted with the facts and circumstances of the case.
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2. That the contents of this appeal and affidavit have been read
over and explained to me in Hindi which I have understood
and have found the same to be true.
3. That the statements made in paragraphs ___2___are true to my
knowledge and information, those made in paragraphs
3,4____are true to my information derived from the records of
the case, which I believe to be true and the rests are by way of
submissions.
4. That the annexures are true/photo/certified copies of their
respective originals.
Sworn, signed and verified at Ranchi on 17.8.2023.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(CRIMINAL APPELLATE JURISDICTION)
Criminal Appeal (DB) (V) No. of 2023
Aman Kumar …Appellant
Versus
Md. Shahrukh @ Sumun @ Suman & Ors. …Respondent
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Sub: Acquittal Appeal (DB) (Victim)
INDEX
S.No. ANNEXURE PARTICULARS PAGES
1. Memo of Appeal with Affidavit and Aadhar 1-20A
Card.
2. Certified copy of the impugned judgement 21-52
dated 12.6.2023 and the order of sentence
dated 16.6.2023 passed by Ms. Kalpana
Hazarika, Additional Sessions Judge – IV,
Chaibasa, West Singhbhum in Sessions Trial
Number 263/2021.
3. VAKALATNAMA
