Patna High Court
Md. Dulal & Anr vs The State Of Bihar on 8 September, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.83 of 2015
Arising Out of PS.Case No. -216 Year- 2010 Thana -KORHA District- KATIHAR
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1. Md. Dulal, son of Akbar Ali
2. Md. Jamshed Ali @ Jamshed Ali, Son of Late Md. Niyazuddin @ Late Md.
Niyazuddin, both resident of Village- Raksi, Police Station- Korha, District-
Katihar
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (SJ) No. 132 of 2015
Arising Out of PS.Case No. -216 Year- 2010 Thana -KORHA District- KATIHAR
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Akbar Ali, S/o Late Niyazuddin, resident of Village Raksi, Police Station Korha,
District Katihar.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
(In CR. APP (SJ) No.83 of 2015)
For the Appellant/s : Mr. Baban Roy-Amicus Curiae
For the Respondent/s : Mr. Abha Singh-A.P.P.
For the Informant : Mr. Pawan Kumar Singh-Advocate
(In CR. APP (SJ) No.132 of 2015)
For the Appellant/s : Mr. Baban Roy-Amicus Curiae
For the Respondent/s : Mr. Binod Bihari Singh-A.P.P.
For the Informant : Mr. Pawan Kumar Singh-Advocate
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 08-09-2017
Learned counsel for the appellants in the both the appeals
did not turn up on account thereof, Sri Babbn Roy, learned counsel,
who is present in court has been requested to assist the Court as an
Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 2
Amicus Curiae.
2. Heard learned Amicus Curiae, learned Additional
Public Prosecutor as well as learned counsel for the informant.
3. Appellants, Akbar Ali, Md. Jamshed Ali, Md. Dulal
have been found guilty for an offence punishable under Section
341/34, 307/34 of the I.P.C. vide judgment of conviction dated
20.01.2015and appellant Akbar Ali has been directed to undergo R.I. for six years as well as to pay fine appertaining to Rs.2,000/- and in default thereof, to undergo S.I. for two months under Section 307/34 of the I.P.C. and further, S.I. for one month under Section 341/34 I.P.C. while appellant Md. Jamshed and Md. Dulal each has been sentenced to undergo R.I. for four years under Section 307/34 I.P.C. as well as to pay fine appertaining to Rs.1,000/- and in default thereof, to undergo S.I. for one month, and to undergo S.I. for one month under Section 341/34 of the I.P.C. with a further direction to run the sentences currently, vide order of sentence dated 22.01.2015 passed by the Sessions Judge, Katihar in Sessions Trial No.198 of 2011.
4. Md. Nurul Haque (PW-7) gave his fard-bayan on 14.11.2010 at about 11.15 hours while he was admitted at Katihar Medical College Hospital divulging the fact that she-goat of Akbar Ali gone inside his field and grazed the standing crop on 12.11.2010 Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 3 at about 4.00 p.m. and for that, a Panchayati was convened at the place of Abu Taleb. It was resolved in the Panchayati that Akbar Ali will have to pay the damage on account of grazing the crop which Akbar did not accede with. Then, he proceeded there from towards his house and during midst thereof, Md. Jamshed Ali caught hold him and Akbar Ali gave knife blow on account of which, he became injured and fell down. Md. Dulal had also assisted along with Jamshed Ali during course of his apprehension. On hue and cry, the accused persons fled there from. The persons so present lifted him to the Sadar Hospital wherefrom he was referred to Katihar Medical College Hospital where his treatment was being done.
5. After registration of Korha P. S. Case No.216 of 2010, investigation commenced and after completing the same, chargesheet was submitted followed with taking of cognizance of offence ultimately leading to trial which concluded adverse to the interest of the appellants in a manner as indicated above, hence this appeal.
6. Defence case, as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Further defence happens to be that during course of Panchayati, there was ruckus and during course thereof, informant had fallen over pointed piece of stiff branch as a Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 4 result of which, sustained injury. To substantiate the same, also examined two DWs namely DW-1 Md. Mujibul and DW-2 Md. Nazimul.
7. In order to substantiate its case, prosecution had examined altogether 11 PWs, who are PW-1 Md. Hanif, PW-2 Yogendra Prasad, PW-3 Md. Lutfur, PW-4 Md. Naushad Ali, PW-5 Md. Abu Taleb, PW-6 Raman Prakash Bashistha, PW-7 Nurul Haque, informant of the case, PW-8 Dr. Manjool Vijay, PW-9 Narayan Turi, Chaukidar, PW-10 Samsul Haque and PW-11 Sabhapati Yadav. Side by side, had also exhibited material Exhibit-1 White Punjabi Kurta, Material Exhibit-II White Baniyan, Material Exhibit-III Green Gamchha, Exhibit-1 fard-bayan, Exhibit-2 formal F.I.R. Exhibit-2/1 endorsement, Exhibit-3 signature of informant over fard-bayan, Exhibit-4 injury report, Exhibit-5 signature of PW-10 over fard- bayan, Exhibit-6 signature of PW-10 over seizure list, Exhibit-7 endorsement of informant over seizure list. As stated above, two DWs namely DW-1 Md. Mujibul and DW-2 Md. Najimul have been examined on behalf of defence.
8. Learned Amicus Curiae during course of challenging the finding recorded by the learned lower Court has submitted that learned lower Court had failed to appreciate the evidence in its right Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 5 perspective. To substantiate the same, it has been submitted that when the evidence of remaining independent prosecution witnesses are taken together with the evidence of DWs, it is found that they have substantiated equally the manner of occurrence, which happens to be contrary to the story flashed by the informant along with his two brothers and own henchman. That being so, the manner of occurrence as well as genesis of occurrence is found completely changed. Because of the fact that manner of occurrence as well as genesis of occurrence has been suppressed by the prosecution, that being so, the judgment of conviction and sentence would not survive.
9. It has also been submitted that non-happens to be named as an eye witness in the fard-bayan, on account thereof, the informant got his own henchman stamped as an eye witness, which could not be recognized. In likewise manner, it has also been submitted that from perusal of fard-bayan, it is evident that the P.O. has not been properly shown and so, the cumulative effect, nullifying the finding recorded by the learned lower Court.
10. On the other hand, learned Additional Public Prosecutor assisted by the learned counsel for the informant has submitted that in terms of Section 134 of the Evidence Act, is quality and not the quantity, which matters during course of adjudging case, Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 6 in the background of status of the witnesses. Furthermore, it has also been submitted that evidence of an injured would not be brushed aside in casual manner rather, it has got primacy unless and until, there happens to be some sort of exaggeration to such extent transforming the evidence unreliable. PW-7 is the informant/ injured and from perusal of the same, it is apparent that he happens to be consistent with regard to genesis as well as manner of occurrence. Apart from this, it has also been submitted that defence had also admitted conduction of Panchayati at the house of Md. Taleb and further, ruckus having effected and during course thereof, as per version of other PWs including DWs, informant had sustained injury on account of falling over branches having collected, kept, but the same has completely been ruled out by the evidence of the doctor (PW-8). That being so, the only inference now available is to identify the appellants to be his assailant as well as actively involved therewith. Consequent thereupon, these appeals are fit to be dismissed.
11. Before coming to ocular evidence, it looks desirable to have a glance over the medical evidence. PW-8 had examined informant on 14.11.2010 while he was posted at Katihar Medical College as a Medical Officer-cum-Tutor, who had complained of assault by means of knife:-
Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 7 On external examination, he had found cut over left side of the abdomen. He had found dimension of the injury as 3cm x 3cm x muscle deep and part of the body stomach left side, injury happens to be caused by dangerous weapon used as sharp cutting weapon probably by knife. During cross-examination, he had stated that it was a muscle injury. It was not possible by falling on bamboo pieces. This injury cannot be caused by falling on sharp edged wood pieces. With regard to proper identification of the injury, he had said that he is able to identify the same on his own assessment, skill, experience.
12. From the record, it is evident that defence has not denied presence of injury over the person of informant during course of Panchayati having been convened on account of grazing of crop by the she-goat belonging to accused/ appellant Akbar Ali. The only controversy, now rest whether injured had sustained the same on account of knife blow given by Akbar Ali, if it was caused on account of falling over pointed Neem branch, kept at the site. In order to ascertain the aforesaid issue, the evidences of the witnesses have been minutely gone through. During course of the same, it is evident that two kinds of evidences have been brought up by the prosecution itself. The first kind happens to be that of those belonging to the family of the informant that means to say, PW-1 Md. Hanif as well as PW-7 Nurul Haque, PW-10 Samsul Haque including informant himself. Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 8 PW-10 Samsul Haque is not over the occurrence as an eye witness, rather he had stated that Nurul Haque was also assaulted by Akbar Ali, Md. Dulal and Md. Jamshed, for which fard-bayan was recorded over which he had put his signature. He had also identified himself over production-cum-seizure list (exhibited). In Para-4, he had admitted his relationship with PW-7, informant to be his full-brother. He had further stated that Darogaji took his signature in village itself. Its repercussion will be dealt with later on.
13. PW-1 had deposed that occurrence is dated 13.11.2010 at about 10.00 p.m., she-goat of accused had grazed maize crop of Nurul Haque. While he had caught the she-goat and was carrying the same, Akbar Ali snatched away. There was Panchayati in which Akbar Ali was fined Rs.2,000/-, but he had not accepted the same. When he was about to return back, Dulal and Jamshed caught hold his hand and Akbar Ali pierced knife in the stomach of Nurul Haque. He was adamant to give repeated blow, but the same was objected as he caught hold his hand and frustrated his attempt. Nurul Haque was admitted to Medical College where he was treated for 22 days. During course of occurrence, there was uproar whereupon witnesses came identified the accused in dock. During course of cross-examination in Para-6, he had stated that informant happens to be his own brother. It was dark night. Occurrence happens to be at a Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 9 distance of five rassi away from the place where Panchayati was convened. On court question, he had disclosed that one rassi happens to be 20 hands. In Para-7, he had stated that he was at Panchayat. At the time of occurrence, he was present. 100-50 persons were present in Panchayati. He further identified the place of occurrence with a boundary West- Irfan Ali, East-Samed Ali, North-Taleb, South- Aleman. It happens to be east to the place where Panchayati was convened. In Para-9, he had stated that his house lies by the side of his brother/ informant. His house lies west to the place where Panchayati was effected. As no order was passed in Panchayati, therefore, Nurul Haque was going to his house.
14. PW-7 is the informant. He had deposed that while he was admitted at Katihar Medical College, his fard-bayan was recorded by the police over which he had put his signature. He had further stated that the occurrence took place about one year nine months ago. It was 9-10 p.m. She-goat of Akbar Ali grazed maize crop over an area three kattha. He was bringing she-goat, which forcibly taken away by Akbar Ali. At that very time, they abused then had said that he left the she-goat for that Panchayati was convened. Akbar Ali was called in Panchayati and was scolded by the Panches. He was directed to pay Rs.3,000/- as compensation, on which Akbar Ali had disclosed that his she-goat had not grazed the crop why should he pay Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 10 compensation. Then Akbar threatened to eliminate. Akbar Ali, Md. Dulal and Md. Jamshed encircled him, out of whom, Akbar gave knife blow. He had shown the scar mark. Witnesses came and seen the occurrence. He was taken to Sadar Hospital wherefrom, he was referred to Katihar Medical College. Identified the accused. During cross-examination at Para-3, he had admitted inter se relationship. Accused happens to be his own cousin brother. At Para-4, he had also stated that dispute arose on account of apprehension of she-goat. In Para-5, he had said that place where he had caught hold she-goat happens to be two kilometers away from his house. He is unable to say Khata number, khesra number and boundary of that plot. At Para- 6, he had stated that while coming from the field with she-goat, she- goat slipped and gone inside house of accused which lies in the midst of way. In Para-7, he had stated that when she-goat entered inside the house of accused, accused persons abused. He had further stated that Panchayati was convened at the darwaza of Taleb. There was no written panchnama in Panchayati, when accused was fined Rs.3,000/-, over which Akbar said that why should he pay Rs.3,000/-. He had further shown boundary of the P.O. North-Road, again corrected the house Taleb, South-Road, East-house of Taleb, West-house of Irfan. Then had disclosed that occurrence took place 15-20 yards east to the place of Panchayati. At that very time, he was returning after Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 11 attending Panchayati. Panches have disclosed that as there was ruckus and so, all should leave the place. At the time of occurrence, Naushad, Lutfar, Hanif and one person was along with him. Akbar Ali came from front side and then, pierced knife while two accused have caught hold him. He had further stated that it was not a dark night. In Para-9, he had stated that occurrence took place at the darwaza of Taleb, then had denied the suggestion that during course of falling of branches of Neem tree, he sustained injury.
15. The second nature of evidence happens to be that of villagers. PW-3 is Md. Lutfur, whose presence the informant had admitted during course of occurrence. He had admitted that on the alleged date and time of occurrence, there was Panchayati at the house of Abu Taleb. He was also present there. Akbar Ali was fined Rs.2,000/-, which he did not accept whereupon, there was din. When Nurul Haque proceeded there from, Dulal and Jamshed caught hold Nurul and during course thereof, Panches, he himself intervened and during course thereof, Akbar Ali had inflicted knife blow. Nurul Haque shifted to Sirsa Medical College. He had made statement before the police. There was no source of light at the Panchayati. It was moonlit night. In Panchayati, persons having adjoining houses to Abu Taleb were present. He had not seen Irfan. About 100-200 persons were there in Panchayati. Panchayati was on account of Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 12 grazing of maize by she-goat of Akbar Ali and for that, he was fined. He had further identified the place of occurrence to be North-Illegible, South-house of Aleman, East-Shamid, West-house of Irfan. He had also admitted presence of one Neem tree at the house of Abu Taleb, which at the present is not existing. Then had denied the suggestion that its branches were accumulated at the darwaza of Abu Taleb. There was no altercation amongst the parties. There was no grappling. As soon as Panchayat sat, occurrence took place. When Akbar Ali was not going to accept the verdict of Panchayat over which, Nurul said that if you are not obeying the order of Panchayat then, he is going and then, 7-8 persons along with Nurul, proceeded there from. He also accompanied. He was 5-6 steps behind him. He was watching whether resolution was made or not. As soon as, marpit took place, he rushed. During course thereof, he saw inflicting knife blow and then accused fled away.
16. PW-4 is Naushad Ali. He had deposed that on account of grazing of maize crop by the she-goat of Akbar Ali, there was Panchayati. During course of Panchayat, there was ruckus, marpit took place between Nurul and Akbar. During midst thereof, somebody gave knife blow. Then thereafter, he was taken to hospital. During cross-examination, he had admitted his relationship with the informant as well as accused. He had further stated that he had not Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 13 seen grazing of maize by she-goat of Akbar Ali. He was present in Panchayati. He had seen ruckus, who had taken away the victim to hospital, he is unable to say.
17. PW-5 is Md. Abu Talif, who had deposed that occurrence is about one year ago. Panchayati was going on ahead of his house. It was 10.00 p.m. He had participated in the Panchayati, which was convened on account of grazing of maize plant by the she- goat of Akbar Ali. During course of Panchayati, there was ruckus followed with marpit. Both the parties have sustained injuries. During course thereof, Akbar Ali gave knife blow and then, escaped there from. Other accused have caught hold Nurul. He shifted Nurul to Medical College. During cross-examination, he had stated that he has come along with Nurul. He had further stated that Nurul Haque as well as Akbar Ali happens to be his cousin brother. He had identified the place of occurrence as North-Graveyard, South-Aleman and Sakuddi, East-Shamed and West-Md. Irfan. He had further disclosed that Panchayati was going on at the darwaza of Abu Taleb. There were 50 persons. It was dark night. In the lamp, Panchayati was being conducted. There was one Neem tree near the place where Panchayati was gonig on. Small branches were kept there. During course of Panchayati, there was ruckus and during course thereof, some persons fallen down, who sustained injuries. He was at the Darwaza of Abu Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 14 Taleb where Panchayati was going on. Then had stated that quarrel begin one Rassi south to the place where Panchayati was convened. When he gone there, people had disclosed that Akbar, after inflicting knife blow, escaped there from. He had not seen the occurrence. He had further stated that when he reached there, he found the accused persons present. They have not done anything. Further stated that accused and informant happens to be Gotia.
18. PW-9 is the Chaukidar, who had produced one Punjabi Kurta, one white vest and one Gamcha (green colour), which has been exhibited as Material Exhibit-I, II and III. During cross- examination, he had stated that there happens to be no Maalkhana at the Police Station. PW-11 had exhibited production-cum-seizure list.
19. Now, coming to the evidence of police officials, PW- 2 is the part I.O., who had simply submitted chargesheet. PW-6 is the main I.O., who had deposed that having been entrusted with the investigation, he proceeded therewith. He had recorded statement of witnesses Lutufur Rahman, Naushad Ali, Hanif, Abdul Hannan, Md. Talib, Abdul Sahid, Md. Karim. All the witnesses have supported the occurrence. He had gone to K.M.C.H. and recorded further statement of the informant. Then thereafter, he had gone to the place of occurrence and identified the P.O. North-house of Abu Talib, South- Road, East-flour mill of Abu Talib, West-House of Md. Irfan. Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 15 Production-cum-seizure list was prepared by him at the P.O. relating to cloth having produced. Then thereafter, he had handed over the charge to Officer-in-Charge. During cross-examination at Para-4, he had stated that he had visited the P.O. 3/4 days after the occurrence. He had not seen any mark of violence at the P.O. He had further stated that houses stood nearby place of occurrence. He had further stated that none of the witnesses have claimed to be an eye witness to occurrence. All have deposed categorizing as hearsay witness. He had prepared production-cum-seizure list one week after the occurrence, but the same is not available on the record. He had further stated that he is unable to say whether towel, which was produced contains blood stain. On account of transfer, he had handed over the charge to Officer-in-Charge of the Police Station.
20. As stated above, from the evidence of PW-8, the doctor, it is apparent that the nature of injury, which was found over the person of informant, neither could be manufactured nor could be on account of accidental fall over pointed particle including wooden branch. That being so, now from the evidences having adduced and referred hereinabove is to be minutely seen in order to search out whether appellant Akbar Ali happens to be author of the aforesaid event and if so, other co-convict actively assisted. At the present moment, looking after evidence of DWs have also become pertinent, Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 16 who too have accepted presence of Panchayati, place where Panchayati was held, ruckus having during course thereof, and further, injury sustained by the injured/ informant with an explanation that during push and pull informant fallen down over pointed branch causing injury, which is found supported with the evidence of few prosecution witnesses. Therefore, whatever discrepancy being over the P.O., vanishes.
21. Save and except informant, although attention of the respective witnesses has not been drawn up, but I.O. (PW-6), during cross-examination at Para-5 had categorically stated that during course of investigation, whoever been examined have not claimed to be an eye witness to the occurrence rather they all have claimed to be an hearsay witness.
22. In Jodhan vs. State of Madhya Pradesh reported in 2015 CRI.L.J. 3291, it has been held:-
"21. ..................................... Additionally, we may note with profit that these witnesses had sustained injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P. (2010) 10 SCC 259, it has been observed that the question of weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 17 been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-
in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar (1973)3 SCC 881, Malkhan Singh v. State of U.P. (1975)3 SCC 311, Vishnu v. State of Rajasthan (2009) 10 SCC 477 and Balraje v. State of Maharashtra (2010)6 SCC 673 and Jarnail Singh v. State of Punjab (2009) 9 SCC 719.
22. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt-guarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned counsel for the appellant that the evidence of the injured witnesses have been appositely discarded being Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 18 treated as untrustworthy by the learned trial Judge."
23. After proper consideration of the evidences adduced on behalf of prosecution, defence, it is found and observed that informant (PW-7) had sustained knife blow at the end of the accused. So far presence of other two appellants are concerned, it is apparent that right from initial version, prosecution has not come forward in confident manner, more particularly considering evidence of injured himself, who happens to be inconsistent over activity of appellants Md. Dulal and Md. Jamshed Ali.
24. That being so, appellants, Md. Dulal as well as Md. Jamshed Ali @ Jamshed Ali are entitled for acquittal and on account thereof, the judgment of conviction and sentence recorded by the learned lower Court to their extent is set aside. Cr. Appeal (S.J.) No.83 of 2015 is allowed. They are on bail, hence are discharged from its liabilities.
25. So far appellant Akbar Ali is concerned, considering the evidence as discussed hereinabove, in consonance with the medical evidence, the finding recorded by the learned lower Court is hereby affirmed as a result of which, Cr. Appeal (S.J.) No.132 of 2015 is dismissed. He is on bail. His bail bond is cancelled with a direction to surrender before the learned lower Court within four weeks to serve out the remaining part of the sentence, failing which the learned lower Patna High Court CR. APP (SJ) No.83 of 2015 dt.08-09-2017 19 Court will proceed against him in accordance with law. The first and last page of the judgment be handed over to the learned Amicus Curiae for the needful.
(Aditya Kumar Trivedi, J) Vikash/-
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