Patna High Court
Mustaque Ahmad vs The State Of Bihar & Ors on 17 February, 2016
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.57 of 2016
Arising Out of PS.Case No. -52 Year- 1993 Thana -CHHATAPUR District- SUPAUL
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1. Mustaque Ahmad son of Late Md. Idrish Resident of Village -
Bhagwatpur, P.S. - Chhatarpur, District - Supaul.
.... .... Appellant
Versus
1. The State of Bihar.
2. Md. Safi-ur Rahman Khan @ Heera Khan S/o - Late Ataur
Rahman Khan
3. Muslim Khan S/o - Late Janis Khan
4. Noor Hasan S/o - Late Md. Ishaque
All are resident of village - Bhagwatpur, P.S. Chhatapur, District -
Supaul.
.... .... Respondents
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Appearance :
For the Appellant/s : Mr. Vikramdeo Singh, Advocate
Mr. Nafiuzzoha, Advocate
For the Respondent/s : Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
JUDGMENT AND ORDER
ORAL
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date: 17-02-2016
The appellant herein has filed this appeal, under the
proviso to Section 372 of the Code of Criminal Procedure,
against the acquittal of respondent Nos. 2, 3 and 4 herein, by
judgment and order, dated 04.01.2016, passed, in Sessions
Trial No. 79 of 1994/80 of 1994, by 1st Additional Sessions
Judge, Supaul.
2. The prosecution's case, as described correctly in
the judgment and order of the learned Trial Court, is as under:
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(i) On 06.08.1993, in the evening, father of the
informant, Md. Idrish (since deceased) had gone to
Mohaddipur Hat to purchase some domestic articles and, on
the same day, the informant, Mustaque Ahmad (PW 5), too,
had gone to Chhatapur to attend a meeting and when the
informant (PW 5) returned home at about 10 PM, he came to
know from his mother that Md. Idrish had not returned home
from Mohaddipur Hat. The informant did not pay any heed as
his father, Md. Idrish, used to go, even without informing his
family members, from Hat to Mohanpur, where he had some
agricultural land.
(ii) On the next day (i.e., on 07.08.1993), at about
2:00 PM, when the cousin of the informant, Ayub, came to the
house of the informant from Mohanpur, the informant came to
know from Ayub that his father, Md. Idrish, had not gone to
Mohanpur and it was then that the informant started searching
his father and, in course of search, he was informed by Md.
Safeed (PW 7) and Md. Sakeem (PW 8) that on 06.08.1993, in
the evening, they (i.e., PW 7 and PW 8) were also with
informant's father till 08:00 PM, when the informant's father
was returning home from Hat and reached near Madhopur
Chamrahi West Tola.
(iii) On 08.08.1993, PW 7 and PW 8 further
disclosed that on 06.08.1993, when the informant's father,
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Md. Idrish, reached at Madhopur Chamrahi West tola, they
(i.e., PW 7 and PW 8) had noticed Safi-Ur Rahman Khan @
Heera Khan, Mustaqeem Khan @ Kari Khan, Muslim Khan,
Noor Hasan, Ataur Rahman and five unknown persons
following informant's father and they also offered their
company to Md. Idrish to his house, but Md. Idrish refused
their company by saying that his house is not very far from
that place and, thereafter, Md. Idrish proceeded to his house.
After about 05 (five) minutes, PW 7 and PW 8 heard the cries
of Md. Idrish and when both of them went to the place
wherefrom the cries were heard, they saw that Md. Idrish was
lying on the ground and accused, Mustaqeem and Muslim, had
caught hold of Md. Idrish's legs, accused Ataur Rahman and
two unknown persons had caught hold of his hands and
accused, Safi-Ur Rahman and Noor Hasan, were throttling him
by placing his neck between two lathis and three other
unknown persons were also standing there having sword in
their hands. When PW 7 and PW 8 requested the accused
persons to set free Md. Idrish, the accused persons also
caught hold of PW 7 and PW 8 and, thereafter, the accused
persons fled away in the north direction with the dead body of
Md. Idrish and the accused persons also threatened them not
to disclose the matter; or else, they would also be killed.
(iv) After the disclosure of the matter to the
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informant by PW 7 and PW 8 as indicated above, the
informant and his co-villagers again started a search for Md.
Idrish and while searching Md. idrish, they found some blood
marks on the ground indicating that someone had been
dragged and when the informant and his co-villagers went to
the bank of river Surser, they found blood marks lying in a
larger area and, as such, the informant inferred that the dead
body of his father, Md. Idrish, had been disposed of in the
river by cutting it into pieces.
(v) The reason, assigned for the occurrence, was
that one Mannan had filed a case against the accused persons
in which Md. Idrish was one of the witnesses and a civil
litigation with the accused Noor Hasan was also pending.
(vi) On the basis of the oral statement of the
informant, Mustaque Ahmad, Chhatapur Police Station Case
No. 52 of 1993 was registered, under Sections 302/201/120B
of the Indian Penal Code, against Safi-Ur Rahman Khan,
Mustaqeem, Muslim Khan, Noor Hasan, Ataur Rahman and 05
(five) unknown persons.
(vii) On completion of investigation, a charge
sheet was laid, under Sections 364 read with Section 34 of the
Indian Penal Code, only against four accused persons, namely,
Safi-Ur Rahman Khan, Mustaqeem, Muslim Khan and Noor
Hasan. Accused Ataur Rahman was not sent up for trial by the
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police, but differing with the findings arrived at by the police,
the learned Court below took cognizance of the offences
punishable under Sections 201 and 302 read with Section 34
of the Indian Penal Code against five accused persons,
namely, Safi-Ur Rahman Khan, Mustaqeem, Muslim Khan,
Noor Hasan and Ataur Rahman.
3. Before the trial could commence, one of the
accused, namely, Mustaqeem, died and further proceedings of
the case against Mustaqeem stood abated. During the trial,
another accused, namely, Ataur Rahman, also died and his
case was also dropped as having abated and, thus, remained
only three accused persons, namely, Safi-Ur Rahman Khan,
Muslim Khan, and Noor Hasan.
4. At the trial, when charges, under Sections 364
and 302 read with Section 34 of the Indian Penal Code, were
framed against the accused, they pleaded not guilty thereto.
5. In support of their case, prosecution examined as
many as 09 (witnesses). Accused were, then, examined under
Section 313 (1) (b) of the Code of Criminal Procedure and, in
their examination aforementioned, the accused denied that
they had committed the offences, which were alleged to have
been committed by them, the case of the defence being false
implication due to previous enmity. The defence, too, adduced
evidence by examining one witness.
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6. The learned trial Court, having reached the
conclusion that the case, as against the accused, under
Sections 364 and 302 of the Indian Penal Code, had not been
proved beyond reasonable doubt, acquitted them.
7. Being aggrieved by the judgment and order,
dated 04.01.2016, acquitting thereunder respondent Nos. 2, 3
and 4 herein, the informant, as appellant, has, as indicated
above, preferred this appeal.
8. We have heard Mr. Vikramdeo Singh, learned
Counsel, for the appellant, and Mr. Ajay Mishra, learned
Additional Public Prosecutor, appearing on behalf of the State.
9. It has been submitted by Mr. Vikramdeo Singh,
learned Counsel, for the appellant, that the findings, reached
by the learned trial Court, leading to the acquittal of the
respondent Nos. 2, 3 and 4 herein, is perverse inasmuch as
the learned trial Court has not, according to Mr. Singh,
correctly appreciated the evidence available on record. On the
other hand, it is the submission of Mr. Ajay Mishra, learned
Additional Public Prosecutor, appearing for the State, that the
learned trial Court has assigned good and sufficient reasons
for coming to the conclusion that the charges against the
respondent Nos. 2, 3 and 4 herein could not be proved and,
therefore, warranted their acquittal.
10. Coming to the merit of the case, we, first, take
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note of the evidence of the two eye-witnesses, PW 7 and PW 8.
It is the evidence of PW 7 (Md. Safeed) that on 06.08.1993, he
had gone to Mohaddipur Hat, where he met with Sakeen and
Idrish and at about 07:30 PM, while returning from Mohaddipur
Hat, when all three of them reached near the house of PW 7,
situated in village Madhopur, he (PW 7) saw Safi-Ur Rahman
Khan, Mustaqeem, Muslim Khan, Noor Hasan and Ataur
Rahman, along with five unknown persons, overtaking them
and, then, both, he (PW 7) and PW 8, offered their company to
Md. Idrish upto his house, but Md. Idrish, after refusing their
company by saying that his house was not very far, proceeded
towards his house and within five minutes thereafter, he (PW
7) heard the cries of Md. Idrish, whereupon he along with PW 8
went to the place, wherefrom the cries were heard, and saw
that Md. Idrish was lying on the ground and accused,
Mustaqeem and Muslim, had caught hold of Md. Idrish's legs,
accused Ataur Rahman and two unknown persons had caught
hold of his hands and accused, Safi-Ur Rahman and Noor
Hasan, were throttling him by pressing his neck between two
lathis and three other unknown persons were standing there
having sword in their hands. When PW 7 requested the accused
persons to set free Md. Idrish, the accused persons caught hold
of him (PW 7) and, thereafter, the accused persons fled away
in the north direction with the dead body of Md. Idrish and the
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accused persons also threatened PW 7 not to disclose the
matter; otherwise, he would also be killed.
11. It is the further evidence of PW 7 that on the
next day of the occurrence, when the informant came to him to
know about the whereabouts of his father, Md. Idrish, he (PW
7), out of fear, had not disclosed the entire occurrence and it is
only after the persuasion of his co-villagers that he had
narrated the entire occurrence to the informant, who,
thereafter, started searching his father and, at last, reached
near the bank of river Surser and found blood marks in a larger
area and, thus, they inferred that the dead body of Md. Idrish
had been disposed of in the river by cutting it into pieces.
Thereafter, PW 7, along with informant and his co-villagers,
had gone to the police station where the informant got his
fardbayan recorded and he (PW 7) had also signed the same as
a witness. It is also in the evidence of PW 7 that his statement,
under Section 164 of the Code of Criminal Procedure, was
recorded.
12. Broadly in tune with the evidence of PW 7 is the
evidence of PW 8.
13. In their cross-examinations, PW 7 and PW 8
admitted that on 17.12.1991, their maternal uncle had got a
criminal case registered against Muslim and Mustaqeem,
accused of the present case, and the deceased Md. Idrish was
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one of the witnesses in that case. These witnesses also
admitted, in their cross-examination, that Muslim, one of the
accused in the present case, had also got a criminal case
registered against them (i.e., PW 7 and PW 8).
14. It is the evidence of PW 7 and PW 8 that on the
day of the occurrence, the entire area of the locality was
flooded with water and that they, along with Md. Idrish, were
returning from Hat through a pagdandi (i.e., katchi road),
though there was a road from the Hat to their house.
15. It is the evidence of PW 7 and PW 8 that out of
fear, they did not disclose the entire occurrence to the
informant; but after the persuasion being made by their co-
villagers, they narrated the entire occurrence to the informant.
It is the evidence of the Investigating Officer (PW 10) that PW
7 and PW 8 had not stated before him (PW 10) that they, out
of fear, did not disclose the occurrence to the informant and
after persuasion by their co-villagers, they disclosed the entire
occurrence to the informant.
16. It is the evidence of PW 8 that he and PW 7 had
filed a joint petition, on 16.08.1993, in the learned trial Court,
with a prayer that their statements may be recorded under
Section 164 of the Code of Criminal Procedure; but it is the
evidence of PW 7 that he did not file any joint petition, on
16.08.1993, in the learned trial Court, praying therein for Patna High Court CR. APP (DB) No.57 of 2016 dt.17-02-2016 10/13 getting their statements recorded under Section 164 of the Code of Criminal Procedure.
17. Coupled with the above, for the purpose of determining the guilt of the accused, we take note of the observations made and the conclusions reached by the learned trial Court, at paragraph 21 of the judgment, which read as under:
"21. From perusal of record and having regard to the evidence available on record and the submissions raised on behalf of the parties, it is apparent that in this case, except PW 7 and PW 8, no other prosecution witnesses including the informant has claimed to be an eye-witness to the occurrence. They all have stated that they knew as to the occurrence only from PW 7 and PW 8. They have claimed themselves to be eye-witnesses only to this fact that after disclosure of the occurrence, being made by these two witnesses, when they went to the P.O., they found blood lying there on the ground and also some marks of corpse being draggen away and following the blood marks when they reached near river Surser, they found blood lying there in large quantity which was indicative of this fact that corpse of the father of the informant must have been disposed of there in the river. But as the prosecution has brought nothing on record to prove that the blood found on the P.O. was of the father of the informant so this Patna High Court CR. APP (DB) No.57 of 2016 dt.17-02-2016 11/13 portion of the statements of the prosecution witnesses is of no use for the prosecution. Further, as the accused persons are not facing trial for the charge punishable under Section 201 of the Indian Penal Code, so also there is no need to discuss this point in detail. It is the prosecution version also that just next day after the alleged date of occurrence when the informant, in search of his father, had gone to the house of PW 7 and PW 8, they did not say to him that they are eye-witnesses to the occurrence and in their presence, the accused had killed his father, rather, they disclosed this fact one day further thereafter. These two witnesses have tried to justify their delayed disclosure of the occurrence by saying that as the accused had asked them not to disclose the occurrence so due to fear they remained silent for two days and did not disclose the occurrence but in my view this explanation for delayed disclosure given by the witnesses does not inspire confidence because they have admitted that they were on inimical and litigating terms with the accused from before. Exhibit-A also contradicts the version of these witnesses that they were under the fear of threat given by the accused because if they had been under fear of threat they would not have filed a petition (Exhibit-A) before the court praying for getting their statement recorded under Section 164 of the Code of Criminal Procedure. Thus, I agree with the submissions raised on behalf of the defence that PW 7 and Patna High Court CR. APP (DB) No.57 of 2016 dt.17-02-2016 12/13 PW 8 have seen nothing and have given an afterthought delayed false version as to the occurrence claiming themselves to be eye- witnesses to the occurrence and as such their statement given regarding the occurrence as also their being eye-witnesses to the occurrence do not inspire confidence and as such the same are fit to be discarded and accordingly the same is discarded. I further find that as after the statement of PW 7 and PW 8 being discarded, there remains nothing on record in support of the prosecution version of occurrence as also regarding the involvement of the accused therein so it can well be said that the prosecution has not been able to prove its version, hence, I find and hold tha the prosecution has not been able to prove charge punishable under Sections 364 and 302 of the Indian Penal Code against the accused persons beyond all reasonable doubts."
18. Considering the fact that the finding recorded by the learned trial Court is a possible and reasonable view, we do not find that any case for interference with the acquittal of the accused-respondents could be made on behalf of the appellant.
19. We do not find that the conclusions reached by the learned trial Court was perverse or was a finding which could not have been reached on the basis of the materials on record.
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20. In view of the above, we do not find any ground to admit this appeal and this appeal is dismissed accordingly.
(I. A. Ansari, ACJ) (Chakradhari Sharan Singh, J) Prabhakar Anand/-
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