Patna High Court
Aziz Khan And Ors. vs The State Of Bihar on 5 August, 1963
Equivalent citations: AIR1964PAT158, 1964CRILJ426, AIR 1964 PATNA 158
JUDGMENT G. N. Prasad, J.
1. The appellants, live in number, have been convicted in the first instance for rioting, Chunmun, Moin Khan and Nisar Khan son of Hussaini under Section 148 of the Indian Penal, with three years' rigorous imprisonment each, and Aziz Khan and Nisar Khan, son of Asgnar, under Section 147, I. P. C., with a sentence of two years rigorous imprisonment each. Three of them, Chunmun, Moin and Nisar, son of Hussaini, have next been convicted and sentenced to life imprisonment each under Section 302 read with Section 34 as also under Section 302 read with Section 149 of the Code, with no separate sentence. The other two appellants, Aziz and Nisar, son of Asghar, have been convicted and sentenced to life imprisonment each under Section 302 read with Section 149 of the Code, Appellant Moin has been further convicted and sentenced to three years' ilgorous imprisonment under Section 324 and appellant Aziz has been further convicted and sentenced to three months' rigorous imprisonment under Section 323 of the Code. The sentences in each case are to run concurrently.
2. The occurrence involving two murders -- one of Amin of Ekhlaspur and the other of Gaffar Khan of Ghainpur --- and assaults of two other members of the prosecution party --- Moinuddin (P. W. 11) and Ghyasuddin (P. W. 2), both of Chainpur -- an committed in the same transaction, is said to have taken place after the mid-night at about 1.30 a. m. on 17-9-59. The place of occurrence as alleged, so tar as the murder of Amin is concerned, is near a cinema house in Bhabhua town, situated about half a mile from Bhabhua police station, and with respect to the murder of Gaffar and assaults on P. W.s' 11 and 2, paddy fields lying at a distance of about 500 yards to the north west of the cinema house, some 500 feet to the norm of the Government Farm there.
3. Among the members of the prosecution, party, who were seven in number, Amin, the deceased, and Rasul (P. W. 7), belonged to Ekhlaspur, situated about one mile from the cinema house and about three-fourths of a mile from the second place of occurrence, and the rest, Gaffar, the deceased, Ghyasuddin (P. W. 2), Munshi (P. W. 6), Jamaluddin (P. W. 10) and Moinuddin (P. W. 11), belonged to village Chainpur situated about 7 miles from Bhabhua. Sukra Mohammad Ansari (P. W. 1), who is the first inlormant in this case, also comes from Chainpur. Among the appellants, Aziz, Chunmun and Moin, come from Chainpur; Nisar, son. of Asghar, conies from Aral, police station Chainpur; and Nisar, son of Hussaini, from Bhabhua proper.
4-9. (After narrating the prosecution case, His Lordship proceeded as under).
10. After the investigation was complete, the Sub-inspector (P. W. 15) submitted charge sheet against the appellants and one more accused persons and a final form against 4 other accused persons. The commitment enquiry proceeded in the first instance against the 6 accused persons (including the appellants) against whom the police had submitted charge-sheet. Subsequently, under an order or the learned Sessions Judge a separate commitment proceeding was started against the remaining 4 accused persons. That Is how there were two separate commitment proceedings giving rise to two separate sessions cases which were numbered as Sessions Cases 156 of 1960 and 93 of 1961 respectively. The two sessions cases, since they arose out of the same occurrence, were heard together and one set of evidence was taken In both.
11-17. (After considering the medical evidence on record, the judgment proceeded).
18. On behalf of the appellants, however, it was urged by Mr. Akbar Imam that, as regards Amin, it was no more than a case of grievous Hurt, inasmuch as his death was postponed and, in the meantime, gangrene supervenes. But this argument is without merit. The medical evidence is clear to the effect that the gangrene itself was the result of the two injuries which Amin had suffered. The offender in such a caso must be deemed to be responsible not only for causing the gangrene but also death which was its (sic) consequence.
19-21. (After considering the testimony of five eye witnesses, His Lordship proceeded).
22. Stress was, however, laid by Mr. Imam upon the stomach contents of Gaffar, which were 10 ounces of fluid rice and vegetables in semi-digesting stage. Relying upon the evidence of P. W. 11, which discloses that Gaffar had taken his meals in the House of Ahmad Mian (P. W. 9) at Ekhlaspur at about 7.30 P. M. on that evening, it was urged that the occurrence must have taken place sometime before the mid-nignt. But the prosecution witnesses have purposely shifted the time of the occurrence to near about 1.30 a. m. in order to avoid any criticism on account of absence of local witnesses. In my opinion, the mere existence of rice and vegetables in a semi-digesting stage is not sufficient to lead to the conclusion that the occurrence must have taken place sometime before the midnight. The process of digestion is not uniform with every human being. It varies from individual to individuals, the prosecution witnesses could have no motive to have shifted the time of the occurrence simply to avoid a criticism on account of absence of local witnesses. If they had only to shift the time of the occurrence then they would have brought it more towards the morning than at 1.30 a.m. or so. Our attention, was, however drawn to the dying declaration (Ext. 2) of Amin Mian where he stated that it was between 9.30 and 10 p. m. that he had been (sic). But it must be remembered that, at the time when Amin made his dying declaration, he was in a precarious condition and, it is, therefore, not at all strange that he was not quite accurate as to the actual time of the occurrence, in my opinion, the prosecution witnesses have (sic) deposed that the occurrence had taken place near about 1.30 a. m.
23-34. (After discussing the evidence on record, his Lordship concluded as under).
35. Upon a consideration of the evidence on the record, I am fully convinced that ad the five appellants had taken part in the occurrence as members of an armed mob which was actuated by the common object of commiting the murders of Amin and Gaffar, Among them, appellants Chunmun, Moin and Nisar son of Hussami were armed with deadly weapons like ballam and chhora and had played active role in occurrence. The other two appellants, Aziz and Nisar, son of Asghar, had shared their common object though they played less conspicuous part in the occurrence. All the five appellants are, therefore, guilty under Section 302 read with Section 149 I. P. C. and among them appellants Moin, Chunmun and Nisar son of Hussaini are guilty under Section 148 and Aziz and Nisar, son of Asghar, are guilty under Section 147 I. P. C.
36. As regards the charge under Section 302 read with Section 34 I. P. C. against appellants Chunmun, Moin and Nisar, son of Hussaini which is really one for the murder of Gaffar, the argument of Mr. Imam is that in the contusion which must have followed the chase of the members of the prosecution party it could have not been possible for P. Ws. 2, 6 and 10 to have seen quite accurately as to which of them had given particular blow to Gaffar and that, so far as P. W. 11 is concerned, the position is tnat he had been assaulted and had possibly become unconscious before the assults on Gaffar took place, and in these circumstances it may not be safe to record a conviction against these appellants for their individual over acts. But it is unnecessary to go into this question because the conviction of these three appellants under Section 302/ 34 I. P. C. is raaliy redundant, and, even if set aside, it will make no difference since, as to their guilt under Section 302/149 I. P. C. there is absolutely no room for, doubt.
37. Mr. Imam has also questioned the validity of the trial. It is urged that the two Sessions Cases No. 156 of 1960 and No. 93 of 1961 having been ordered to be tried together, and not amalgamated into one, they had been retained their separate entity with separate order sheets of their own, and in these circumstances, the evidence in each case should have been separately recorded. But since that was not done the effect has been that the evidence recorded in only one case has been used in both, thereby vitiating the entire trial. In my judgment, this argument is more of despair than of substance. The that was one and rightly so, since the prosecution case was one, relating to one occurrence, and it was wholly unnecessary to record the same evidence separately in the two sessions cases. The entity of the two cases was kept separate only for statistical purposes just as is the practice in analogous cases where each case has its own order-sheet even though the trial is one, I am satisfied that the trial was not vitiated at all. There is also nothing to show that any prejudice was caused to the appellants on this score.
38. In the result, the conviction ot appellants Chunmun, Moin and Nisar, son of Hussami, under Section 302/34 I. P. C. is set aside, but in all other respects, the order of the court below is upheld, except that the sentence of life imprisonment m the case of appellants, Chunmun, Moin and Nisar, son of Hussain, will be deemed to have been imposed upon them under Section 302/149 I. P. C. With this modification, the appeal is dismissed. Appellants Aziz and Nisar, son off Asghar, who are on bail, must now surrender and serve out their sentence.
Anant Singh, J.
39. I agree.