Patna High Court
Md. Idrish @ Idrish Mian vs State Of Bihar on 6 August, 2012
Author: Sheema Ali Khan
Bench: Sheema Ali Khan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.303 of 2000
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AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 17.8.2000, PASSED BY THE 6TH ADDITIONAL
DISTRICT & SESSIONS JUDGE, SIWAN IN SESSIONS TRIAL NO.
271 OF 1982.
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Md. Idrish @ Idrish Mian, son of Hasan Ali, Resident of Village Husena Police
Station Siswan, District Siwan.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
with
Criminal Appeal (SJ) No. 316 of 2000
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1. Sudarsan Sah, son of Laxmi Sah.
2. Shree Niwash Sah, son of Ganga Bisun Sah, Both are resident of Village
Hussain Bangra, P.S. Sisawan, District Siwan.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
with
Criminal Appeal (SJ) No. 370 of 2000
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1. Mohd. Quamuddin Mian @ Quamuddin, son of Hasnalli Mian, Resident of
Village Hussena Bazar, P.S. Siwan, District Siwan.
2. Md. Farooq @ Farooq Mian, son of Hasnalli Mian, Resident of Village Hussena
Bazar, P.S. Siwan, District Siwan.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Appearance :
(In CR. APP (SJ) No. 303 of 2000)
For the Appellant : Mr. Arun Kumar Tripathi, Amicus Curiae
(In CR. APP (SJ) No. 316 of 2000)
For the Appellants : Mr. Radha Krishna Singh, Advocate
(In CR. APP (SJ) No. 370 of 2000)
For the Appellants : Mr. V.B.P. Ambastha, Advocate
For the State in all cases : Ms. Abha Singh, A.P.P.
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CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN
ORAL JUDGMENT
Date: 06-08-2012
2 Patna High Court CR. APP (SJ) No.303 of 2000 dt.06-08-2012
2 / 10
S.A. Khan, J.Nobody is representing the appellants in Cr. Appeal (SJ) No. 303 of 2000 and Cr. Appeal (SJ) No. 370 of 2000, as such Mr. Arun Kumar Tripathi and Mr. V.B.P. Ambastha are appointed as Amicus Curiae respectively. Mr. Radha Krishna Singh is representing the appellants in Cr. Appeal (SJ) No. 316 of 2000.
2. These appeals are directed against the judgment of conviction and order of sentence dated 17.8.2000, passed by the 6th Additional District & Sessions Judge, Siwan in Sessions Trial No. 271 of 1982 convicting the appellant Md. Idrish @ Idrish Mian to undergo R.I. for 10 years under Section 307 of the Indian Penal Code and he is further convicted to undergo R.I. for 2 years under Section 27 of the Arms Act. No separate sentence has been awarded under Section 148 of the Indian Penal Code against Md. Idrish @ Idrish Mian. It was directed that the sentences awarded to Md. Idrish @ Idrish Mian shall run concurrently. Appellant Sudarsan Sah has been convicted under Sections 147, 323 and 325 of the Indian Penal Code. Appellants Mohd. Quamuddin Mian @ Quamuddin and Md. Farooq @ Farooq Mian have similarly been convicted under Sections 147, 323 and 325 of the Indian Penal Code. Appellants Sudarsan Sah, Mohd. Quamuddin Mian @ Quamuddin and Md. Farooq @ Farooq Mian have been directed to 3 Patna High Court CR. APP (SJ) No.303 of 2000 dt.06-08-2012 3 / 10 be released on probation of a bond of Rs. 2000/- with two sureties of the like amount each for a period of one year for maintaining peace and good behaviour during the said period. Appellant Shree Niwash Sah has been directed to be released on probation of a bond of Rs. 5000/- with two sureties of the like amount each for a period of one year for maintaining peace and good behaviour during the said period.
3. Raja Ram Singh has given his statement before the police on 22.11.1981 at about 11 A.M. at the Sadar Hospital, Siwan alleging therein that when he reached the house of Basant Sao the appellants surrounded him. It is alleged that appellants Sudarsan Sah, Shree Niwash Sah, Mohd. Quamuddin Mian @ Quamuddin and Md. Farooq @ Farooq Mian began to assault Raja Ram Singh with lathi. The informant began to shout for help. In the meantime, Sri Ram Singh and Anil Singh came to the place of occurrence whereupon it is alleged that Md. Idrish @ Idrish Mian fired two rounds which hit both of them. The reason for the occurrence is that the son of the informant with some other children were playing with each other which led to a dispute between the children. Being aggrieved by this fact the said occurrence is said to have taken place. 11 witnesses have been examined in this case to substantiate the prosecution version. 4 Patna High Court CR. APP (SJ) No.303 of 2000 dt.06-08-2012 4 / 10 P.W. 11 is the doctor. P.Ws. 9 and 10 are formal witnesses who have proved Ext. 1 i.e. the formal First Information Report and Ext. 2 the writing of the person who recorded the Fardbeyan. The injured have been examined as P.Ws. 5 and 6 whereas the informant is P.W. 7. P.W. 10 had to prove the requisition for examining the gun belonging to Md. Idrish @ Idrish Mian. The others are chance witnesses who have allegedly come to the spot on hearing the alarm raised by Raja Ram Singh.
4. P.W. 1 Raj Narayan Singh was shopping nearby when he heard the commotion. On going through the place of occurrence he saw that the appellants were assaulting Raja Ram Singh with a lathi. He is the cousin of the informant. He supports the fact that the genesis of the occurrence is a fight between the children of the informant and the appellants. This witness has stated at paragraph 7 that the area is dominated by Rajputs and that the family of Md. Idrish @ Idrish Mian is the only muslim family living in that area. He further admits that there was a case between him and Md. Idrish @ Idrish Mian about 12 years ago and that Md. Idrish @ Idrish Mian and Mohd. Quamuddin Mian @ Quamuddin both were working at Darjeeling. Describing the place of occurrence, he accepts that the occurrence took place at the end of the village (Siwana).
5 Patna High Court CR. APP (SJ) No.303 of 2000 dt.06-08-2012 5 / 10
5. P.W. 2 Ram Bichari Singh is not named as a witness in the First Information Report. However, he supports the occurrence denies that Md. Idrish @ Idrish Mian had filed any case against Shree Niwash. He claims to be a chance witness as he came to the place of occurrence when he heard the noise, while he was purchasing certain items from the shop of Viahwanath Sah. According to him when he first saw the informant Raja Ram Singh he saw that his hand was bleeding and that some other were injured and lying on the floor. He also accepts that Md. Idrish @ Idrish Mian is the only muslim who has his house in the village. He denies that Md. Idrish @ Idrish Mian had filed Siswan P.S. Case No. 10(11) of 1981 against Shree Niwash. He also states that Idrish had drunk some water from the well belonging to a Brahman and ruined the purity of the well which was also one of the reasons for the occurrence.
6. P.W. 3 Basdeo Singh came to the place of occurrence on hearing alarm raised by Raja Ram Singh. He too is not named in the First Information Report. He claims to have been working in the field when he heard the sound of noise. After he reached the place of occurrence he saw that the appellants were assaulting Raja Ram Singh.
7. P.W. 4 Harshnath Dubey also came on alarm 6 Patna High Court CR. APP (SJ) No.303 of 2000 dt.06-08-2012 6 / 10 being raised and it would appear from his evidence that he had not stated anything about witnessing the firing alleged against Md. Idrish @ Idrish Mian, which he tried to change by adding that Md. Idrish @ Idrish Mian had fired.
8. P.Ws. 5 and 6 as already stated are formal witnesses.
9. P.W. 7 Raja Ram Singh is the informant of this case. According to him when he reached near the house of Basant Sah, Md. Idrish @ Idrish Mian ordered other appellants and the other appellants assaulted him with lathi. When he began to shout for help, his cousin Sri Ram Singh and his nephew Anil Singh reached the place of occurrence and it is alleged that Md. Idrish @ Idrish Mian fired on these two persons injuring them. The reason for the occurrence is that there was a dispute between two Rajput children who were playing in the orchard. The informant went to lodge a protest with Md. Idrish @ Idrish Mian which resulted in hard feelings and the present occurrence. He has specified that on 20th of November the informant's son and the children of Md. Idrish @ Idrish Mian and Sudarsan Sah had fought in the orchard which resulted in this occurrence. At paragraph 16 he states that Md. Idrish @ Idrish Mian had filed a case being Siswan P.S. Case No. 10(11) of 1981 which was found false on investigation. 7 Patna High Court CR. APP (SJ) No.303 of 2000 dt.06-08-2012 7 / 10 According to the case filed by Md. Idrish @ Idrish Mian it was said that the informant along with about 200 persons had attacked the house of Md. Idrish @ Idrish Mian and had removed the roof, door etc. He denies the suggestion that Md. Idrish @ Idrish Mian had fired in order to protect his life and property.
10. P.W. 8 Anil Kumar Singh has been injured by firing which took place on the date of occurrence. According to him he went to save his uncle (Chacha) and in the process received fire arm injuries along with Sri Ram Singh who had fainted after he received injuries. This witness denies that Md. Idrish @ Idrish Mian had filed Siswan P.S. Case No. 10(11) of 1981.
11. P.W. 9 Sri Ram Singh is an another injured in this case. He too received injuries when he went to save Raja Ram Singh from being assaulted by the accused persons. He denies that he has any knowledge regarding the case filed by Md. Idrish @ Idrish Mian.
12. P.W. 11 is the doctor who has supported the injuries on Raja Ram Singh. Raja Ram Singh had fractured his ring finger bone and had bruises with swelling on back of his forearm. Anil Kumar Singh had received injuries on the left palm of his hand inflicted by a lathi. Sri Ram Singh had received two 8 Patna High Court CR. APP (SJ) No.303 of 2000 dt.06-08-2012 8 / 10 fire arm injuries one at his hand and one in the scapular region. Both injuries had a wound of exit. The second injury was adjudged of grievous in nature.
13. On the basis of the aforesaid evidence the Court below has convicted the appellants.
14. It has been argued on behalf of the appellants that the informant was the aggressor in this case which would be apparent from the fact that it is not expected that a single muslim family living in a Rajput mohalla would attack the informant in such a manner and that to over a dispute with respect to children. It is further submitted that the injuries are simple in nature except for the fire arm injury on Sri Ram Singh which has been adjudged to be grievous in nature. Apart from which it is submitted that the eye witnesses have not been examined in this case and the witnesses who are purportedly chance witnesses have come for the first time during the trial and as such their evidence should be believed. Regarding the later submission made on behalf of the appellants the only way to test the submission would be to refer to the statement of the Investigating Officer. However, the Investigating Officer has not been examined in this case to establish the place of occurrence and confirm the genesis of the occurrence.
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15. It would appear from the evidence recorded in this case that a dispute had occurred in which the appellants have assaulted Raja Ram Singh by means of lathi. Sri Ram Singh and Anil Kumar Singh were injured when they tried to intervene in the said occurrence. It is submitted that there was no intention to cause an injury which may prove fatal as far as Sri Ram Singh is concerned, and it was only a matter of chance that he received injuries in this case and, therefore, no case is made out under Section 307 of the Indian Penal Code. As far as the injuries on the informant and Sri Ram Singh are concerned, it would appear that they are simple in nature except for the fact that Raja Ram Singh had fractured his ring finger, the persons who are responsible for inflicting these injuries have already been given the benefit of Section 360 of the Code of Criminal Procedure and no more needs to be added in their case.
16. Considering the case of Md. Idrish @ Idrish Mian, this Court comes to the conclusion that no case is made out under Section 307 of the Indian Penal Code as there was no intention on behalf of Md. Idrish @ Idrish Mian to cause a fatal injury to Anil Kumar Singh. He has remained in custody for about 3½ months during the trial. The occurrence is of the year 1981. This Court notices that 30 years have expired since the occurrence 10 Patna High Court CR. APP (SJ) No.303 of 2000 dt.06-08-2012 10 / 10 took place and, therefore, it would not be proper to send Md. Idrish @ Idrish Mian back to custody considering the fact that he was adjudged to be 64 years in the year 2000. In the result, this Court comes to the conclusion that the sentence undergone are sufficient in the special facts of this case. The appeals are dismissed with modification in sentence. I may point out here, that it could be possible, that Md. Idrish @ Idrish Mian is no longer alive, in that case the appeal would stand abated against him. This fact would require determination by the Trial Court or else the order of this Court will become defective, therefore, the aforesaid order with respect to Md. Idrish @ Idrish Mian is being passed on the assumption that he is alive. In case he is dead the appeal filed by him would stand abated. The appeals are dismissed with the aforesaid alteration of sentence. The appellants are discharged from the liabilities of the bail bonds.
(Sheema Ali Khan, J.) Sanjay/-