Patna High Court
Hafiz Mian @ Hafiz Miya And Ors vs The State Of Bihar on 17 August, 2021
Equivalent citations: AIRONLINE 2021 PAT 1049
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh, Arvind Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.406 of 2016
Arising Out of PS. Case No.-274 Year-2013 Thana- BANIAPUR District- Saran
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1. Hafiz Mian @ Hafiz Miya son of Khalil Mian @ Khalil Miya
2. Khalil Mian @ Khalil Miya, son of Late Mithu Mian @ Mithu Miya
3. Ibrahim Mian @ Ibrahim Miya, son of Khalil Mian @ Khalil Miya
4. Qurban Mian @ Kurban Miya, son of Khalil Mian @ Khalil Miya
All of the resident of Village- Amaon, Dhobi Tola, P.S.- Baniyapur, District-
Saran at Chapra
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellants : Mr. A. K. Thakur, Advocate
Mr. Ram Binod Singh, Advocate
For the Respondent-State: Mr. Dilip Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date : 17-08-2021
Heard Mr. A. K. Thakur, learned counsel for the
appellants and Mr. Dilip Kumar Sinha, learned Additional
Public Prosecutor for the State.
2. The appellants have challenged the judgment
of conviction dated 14.03.2016 and the order of sentence dated
17.03.2016passed by the learned Additional Sessions Judge-VI, Saran at Chapra in Sessions Trial No.209 of 2014 arising out of Baniyapur P.S. Case No.274 of 2013.
3. By the aforesaid judgment dated 14.03.2016, Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 2/40 the appellants' Hafiz Mian @ Hafiz Miya, Khalil Mian @ Khalil Miya, Ibrahim Mian @ Ibrahim Miya and Qurban Mian @ Kurban Miya have been convicted for the offences punishable under Sections 302/34 and 323 of the Indian Penal Code (for short 'IPC').
4. After hearing the convicts on the point of sentence, vide consequential order dated 17.03.2016, the Trial Court sentenced them to undergo rigorous imprisonment for life and a fine of Rs.25,000/- each for the offence punishable under Sections 302/34 of the IPC and in default of payment of fine to undergo rigorous imprisonment for an additional period of six months and rigorous imprisonment of six months for the offence punishable under Section 323 of the IPC. The Trial Court further directed that both the sentences shall run concurrently.
5. The sessions trial, in which the impugned judgment and order were passed relates to the First Information Report (for short 'FIR') that had been registered on 23.11.2013 at 10 AM in Baniyapur Police Station under Section 154 of the Code of Criminal Procedure (for short 'CrPC') in respect of an incident that had occurred at village Amaon, Dhobi Tola situated at a distance of one and a half kilometres south-west from Baniyapur Police Station at 8.30 AM on 23.11.2013. Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 3/40
6. The FIR giving rise to the sessions trial was registered based on the fardbeyan of one Nasruddin Mian (P.W.
4), which was reduced into writing by one Rakesh Kumar, a Sub-Inspector of Baniyapur Police Station.
7. In his farbeyan, the informant Nasruddin Mian alleged that on 23.11.2013 at 8.30 AM, a panchayati was commenced near his house for cutting the branch of a pakari tree (white fig) in which Sabib Mian, Habib Mian and Khalil Mian, all three sons of Mithu Mian and other villagers had participated. Khalil Mian and his sons did not accept the decision taken in the panchayati and started abusing the informant and his father, which was protested by them. Thereafter, Khalil Mian and his sons came with lathi from their houses and started indiscriminately assaulting his father Sabib Mian and uncle Habib Mian due to which his father sustained injuries and fell down. Because of the assault, blood started oozing out from the skull of his father, Sabib Mian and uncle, Habib Mian. When he along with his brothers Suleman Mian and Babujan Mian tried to intervene, the accused persons assaulted them also. He with the help of villagers took Sabib Mian and Habib Mian to the Referral Hospital, Baniyapur where the doctor declared his father Sabib Mian as dead. Considering Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 4/40 the serious condition of his uncle Habib Mian, the doctor, after giving first aid, referred him to Sadar Hospital, Chapra for better treatment. The cause of occurrence was that a day before Muharram, his younger brother Babujan and cousin Qyamuddin son of Habib Mian (both not examined) had cut a branch of pakari tree for which the panchayati was convened.
8. On receipt of the aforesaid fardbeyan of the informant at 10 AM on 23.11.2013, one Govind Rajbanshi (not examined), the Station House Officer (for short 'SHO') Baniyapur Police Station, Saran registered Baniyapur P.S. Case No.274 of 2013 under Sections 341, 323, 325, 307, 302 and 504 read with 34 of the IPC against Khalil Mian, Ibrahim Mian, Qurban Mian and Hafiz Mian and entrusted the investigation to Rakesh Kumar, a Sub-Inspector of Police.
9. The further case of the prosecution is that Habib Mian was referred from Sadar Hospital Chapra to Patna where he died after 3 days.
10. On completion of the investigation, the investigating officer submitted a charge-sheet against all the four FIR named accused persons on 20.02.2014 for the offences punishable under Sections 341, 323, 325, 307, 302 and 504/34 of the IPC.
Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 5/40
11. On perusal of the charge-sheet, the learned Chief Judicial Magistrate took cognizance of the offences, summoned the accused persons, complied with the requirements of Section 207 of the CrPC and committed the case to the court of Sessions vide order dated 26.02.2014.
12. Thereafter, the Trial Court framed charges under Sections 302/34, 307/34, 325/34 and 323/34 of the IPC against the accused persons to which they pleaded not guilty and claimed to be tried.
13. Altogether eight prosecution witnesses were examined during the trial. Rani Bibi (P.W. 1) claims to be an eyewitness. She is the daughter-in-law of the deceased Sabib and sister-in-law of the informant. Gulam Mustafa (P.W. 2) was declared hostile. Sayra Khatoon (P.W. 3) is the wife of the deceased Sabib Mian and mother of the informant Nasruddin Mian (P.W. 4). Dr. Krishna Mohan (P.W. 5), Dr. Shailendra Kumar Singh (P.W. 6) and Dr. Kumar Ravi Ranjan (P.W. 7) are the doctors, who conducted the postmortem examination on the bodies of the two deceased and treated the injured persons. Rakesh Kumar (P.W. 8) is the investigating officer of the case.
14. Apart from the oral evidence the prosecution proved the following documents during the trial:
Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 6/40
(i) Postmortem report of Habib Mian (Exhibit-1),
(ii) Postmortem report of Sabib Mian (Exhibit- 1/1),
(iii) Injury reports of Hadis Mian, Qyamuddin Mian and Nasruddin Mian (Exhibit-2, 2/1 and 2/2 respectively),
(iv) Fardbeyan of the informant (Exhibit-3),
(v) Formal FIR of Baniyapur P. S. Case No. 274 of 2013 (Exhibit-4), and
(vi) Inquest report of the deceased Sabib Mian and Habib Mian (Exhibit- 5 and 5/1 respectively).
15. Nasruddin Mian (P.W. 4), the informant of the case is one of the injured in the incident. In his deposition, he has stated that he was at his door at the time of occurrence when the panchayati was convened by Khalil Mian for cutting the branch of the pakari tree. The panches decided to distribute the portion of the branch of the said tree according to the share to which Habib Mian and Sabib Mian agreed, but the accused persons did not accept the decision. They indulged in abusing the members of the prosecution party. They brought lathi from their home and started assaulting them. Khalil Mian assaulted Sabib Mian by lathi on his head, Ibrahim also assaulted him and Qurban Mian and Hafiz Mian assaulted Habib Mian. He further Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 7/40 stated that Qyamuddin (not examined), Hadis (not examined) and he himself received injury on their head. He further stated that Suleman had also received injury. He further stated that injured persons were treated at Baniyapur Referral Hospital. During treatment, the doctor said that Sabib Mian had already died. Habib Mian was referred to Chapra Sadar Hospital and from Chapra he was taken to Patna where he also died after three days. He stated that his oral statement was recorded by the police, which was read over and explained to him and finding the contents to be true, he put his thumb impression over the statement given before the police. He stated that when he was making his statement, Sayra Khatoon was present and she had also put her signature over his statement recorded by the police. He further stated that Sayra Khatoon had also put her thumb impression on the inquest report of Sabib Mian, which was prepared in his presence. He further stated that he became a witness to the inquest report of Habib Mian.
16. In cross-examination, he admitted that no document of panchayati was prepared rather it was to be prepared after panchayati. He further admitted that there is a Gram Panchayat in the village, which consists of elected Mukhiya and Sarpanch. He stated that the quarrel took place Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 8/40 after the panchayati, when the panches had moved 30-40 steps ahead. He stated that all the four accused persons had hurled countless number of lathis and when Qyamuddin Mian, Hadis Mian and Suleman Mian and he tried to intervene, he also sustained injuries on his head. The injury was also caused to Qyamuddin on his head and Hadis Mian on his right hand. He further stated that because of the assault, blood had not fallen on the soil. He admitted that the accused Ibrahim Mian, Qurban Mian and Hafiz Mian had also sustained injuries and they were arrested by the police from the hospital itself. However, Khalil Mian managed to escape. He stated that Habib Mian and Sabib Mian were taken to the hospital, which is at a distance of one and a half kilometers from the place of occurrence on a cot. He stated that blood had fallen on the cloth and the cot and the clothes were handed over to the police. He denied the defence suggestion that the accused persons were not being allowed to enter their house. He stated that Habib Mian died three days after the occurrence in the hospital at Patna. He stated that the body of Habib Mian was brought to Baniyapur Police Station from where it was sent to Chapra for postmortem examination. He further denied the defence suggestion that the members of the prosecution party were themselves aggressors and no Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 9/40 occurrence as alleged had taken place. He further denied the defence suggestion that the members of the prosecution party had assaulted the accused persons.
17. Rani Bibi (P.W. 1), the daughter-in-law of the deceased Sabib Mian, deposed that while she was cooking meal, after hearing hulla, she came out of her house and reached the place of panchayati. She saw that Khalil Mian, Ibrahim, Qurban and Hafiz Mian were assaulting Sabib Mian and Nasruddin Mian with lathi. She stated that Sabib Mian died on the spot and Nasruddin Mian received injury on his head. The injured persons were taken to Baniyapur hospital, where Sabib was declared dead by the doctor and Nasruddin Mian was treated. She also stated that the accused persons assaulted Habib Mian too, who died two days after the incident at Chapra during treatment. She stated that Sabib was assaulted by Ibrahim. She identified the accused persons.
18. In cross-examination, she admitted that for the occurrence of the same date, the accused persons have also instituted a criminal case against her family members and the accused persons were also admitted to Baniyapur Hospital for treatment and were arrested by the police from the hospital itself. She stated that Suleman, Babujan and Qyamuddin had Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 10/40 also sustained injuries and were admitted to the hospital. She admitted that the document of panchayati was prepared. She stated that the deceased had sustained injuries from their head to their toes. She further stated that Habib Mian died in hospital at Patna during treatment from where his body was brought to her door and the police were informed who prepared an inquest report at her door and took the body to the police station.
19. Gulam Mustafa (P.W. 2) has been declared hostile by the court at the request of the prosecution. He deposed that he reached the place of occurrence after the occurrence. He was cross-examined by the prosecution. However, nothing relevant could be found in his cross- examination.
20. Sayra Khatoon (P.W. 3) wife of the deceased Sabib Mian stated in her deposition that she was at her door when the panchayati was going on over cutting of branch of pakri tree. The accused persons refused to accept the decision taken in the panchayati. They came out with lathi from their houses and assaulted Sabib Mian and Habib Mian intending to kill them. They also assaulted Hadis (not examined), Nasruddin, Qyamuddin (not examined) and Babujan (not examined). All the injured persons were taken to Baniyapur Hospital where Sabib Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 11/40 Mian was declared dead and Habib Mian was referred to Chapra Sadar Hospital and from thereto to Patna where he died during treatment. She stated that she put her thumb impression over the oral statement of the informant recorded by the police and identified the accused persons.
21. In cross-examination, she expressed her ignorance about Baniyapur P.S. Case No. 275 of 2013 lodged by Ibrahim Mian against Hadis Mian, Qyamuddin Mian and Suleman Mian. She stated that at the time of cutting off the branch of pakri tree, no quarrel had taken place, but the quarrel took place after 2-3 days. She further stated that she was present at the place of occurrence from before and Basudeo, Master and Gama were the panches. She further stated that no blood had fallen on the soil at the place of occurrence. She stated that the police took away the branch of the pakri tree from her door. She stated that the accused persons had got admitted to the hospital after inflicting injuries to themselves. They had assaulted her husband and her son with lathi, as a result of which, they sustained injuries. She stated that it is not a fact that they are not allowing the accused persons to live in their houses and a 107 CrPC proceeding is also going on. She further stated no outsider is a witness in the present case.
Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 12/40
22. Dr. Kumar Ravi Ranjan (P.W. 7) was posted at Baniyapur Referral Hospital as Medical Officer on 23.11.2013. He deposed that on that day, at 10.20 AM, he examined Qyamuddin Mian son of Habib Mian and found one lacerated wound on the left parietal region measuring 2½"x½"x scalp deep on his person. He was advised x-ray of the skull. He stated that the injury was caused by a hard and blunt substance within 8 hours. However, the opinion regarding the nature of the injury was kept reserved awaiting an x-ray report. He also examined the informant Nasruddin Mian on the same day at 10.25 AM and found one bruise on his right shoulder measuring 2"x2" and a lacerated wound on the right parietal region on scalp 2½"x½"x½". In respect of the injuries sustained by the informant, he stated that those were simple in nature. He also examined Hadis Mian on 23.11.2013 at 10.30 AM and found swelling with tenderness on right hand 2"x2" and swelling on occipital region of scalp 1"x1". He opined that the injury on the right hand was simple in nature and for the injury on the scalp, the opinion was reserved till receipt of the x-ray report. He proved the injury reports of the aforesaid injured persons, which were marked as Exhibit- 2, 2/1 and 2/2 respectively.
23. In cross-examination, he stated that all the Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 13/40 injured were examined based on police requisition. He admitted that he did not obtain the x-ray report of the aforesaid injured persons. Hence, he did not give any supplementary injury report.
24. Dr. Shailendra Kumar Singh (P.W. 6) was posted at Sadar Hospital, Chapra as Medical Officer on 23.11.2013. He deposed that on 23.11.2013, at 3.10 PM, he conducted the postmortem examination on the body of Habib Mian and found swelling over the left parietal region of his scalp. He stated that rigor mortis was present and blood was coming out of his nose, ear and mouth. According to him, the cause of death of Sabib Mian was shock and haemorrhage due to the above-mentioned head injury caused by hard and blunt substance and the time elapsed since death was within 12 to 24 hours of postmortem examination. He proved his postmortem examination report, which was marked as Exhibit- 1/1.
25. In cross-examination, he admitted that except for the head injury not even an abrasion was found on the body of the deceased.
26. Dr. Krishna Mohan (P.W. 5) was also posted as a Medical Officer in Sadar Hospital, Chapra on 27.11.2013. On that day, at 8.30 AM, he held a postmortem Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 14/40 examination on the body of the deceased Habib Mian and found the following ante-mortem injuries on the body of the deceased:-
(i) Lacerated wound 2"x bone deep x½" over the vertex of the skull.
(ii) 4" boggy swelling over the head.
He opined that the cause of death was the head injury caused by a hard and blunt substance leading to haemorrhage and shock. He stated that time elapsed since death was within 12 to 14 hours. He proved the postmortem examination report of the deceased Habib Mian, which was marked as Exhibit-1.
27. In cross-examination, he stated that the body of the deceased was identified by the constable (not examined). According to him, injury no. 2 was a haematoma. He admitted that he could notice only two external ante-mortem injuries on the body of the deceased.
28. Rakesh Kumar (P.W. 8) is the investigating officer of the case. He stated in his deposition that on 23.11.2013, he was posted at Baniyapur Police Station as a Sub- Inspector of Police. After receiving information regarding the incident, he proceeded to the Primary Health Centre, Baniyapur Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 15/40 and recorded the fardbeyan of Nasruddin Mian. After the recording of the fardbeyan, it was explained to him and he obtained a thumb impression of Nasruddin Mian and Sayra Khatoon over the same. He made an endorsement over the fardbeyan. He stated that the formal FIR and pagination over it was made by the then SHO of the Police Station, namely, Govind Rajbanshi. He proved the fardbeyan, which was marked as Exhibit-3. He also proved the formal FIR in the writing of the then SHO of Baniyapur Police Station, Govind Rajbanshi, which was marked as Exhibit-4. He stated that since he was handed over the investigation of the case, he prepared the inquest report of the deceased Sabib Mian over which he obtained the signature of Suleman Mian and thumb impression of Sayra Khatoon. He proved the inquest report of Sabib Mian, which was marked as Exhibit-5. He deposed that on 26.11.2013, at 9.30 AM, the body of the deceased Habib Mian was brought to the police station in an ambulance and an inquest report was prepared by the then SHO Bhartendu Sharad, which was testified by Suleman Mian and Nasruddin Mian. He identified the writing of Bhartendu Sharad and Suleman Mian and proved the inquest report of Habib Mian, which was marked as Exhibit- 5/1. He stated that he sent the body of the two deceased Sabib Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 16/40 Mian and Habib Mian to Chapra Sadar Hospital for postmortem examination, recorded the further statement of the informant and apprehended the accused Ibrahim Mian, Qurban Mian and Hafiz Mian from the hospital. He inspected the place of occurrence and prepared its sketch map. Thereafter, he recorded the statements of Sayra Khatoon, Rani Bibi, Zainul Khatoon (not examined) and Gulam Mustafa. Subsequently, he arrested Khalil Mian. He received the injury report of Nasruddin Mian, Qyamuddin Mian and Hadis Mian and the postmortem examination report of the deceased Sabib Mian and Habib Mian. After completing his investigation, he submitted a charge-sheet against the accused persons.
29. In cross-examination, he admitted that the accused Ibrahim Mian, Qurban Mian and Hafiz Mian were arrested from Referral Hospital while they were undergoing treatment on the date of occurrence at 1 PM. He further admitted that he had not issued any injury requisition in respect of the deceased Habib Mian, who was also taken to Referral Hospital. He admitted that the inquest report of the deceased Sabib Mian was prepared at 10.50 AM. He further admitted that during the investigation, he did not receive any document relating to panchayati. He also admitted that he did not seize Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 17/40 any branch of the pakari tree at the place of occurrence nor did he see any branch of such tree. He further admitted that he did not record the statement of Mukhiya and Sarpanch of the local Gram Panchayat. He confessed that apart from the family members of the deceased, he did not examine any other witnesses during the investigation. He admitted that insofar as the body of the deceased Habib Mian is concerned, he did not record anywhere that from which hospital it had come. He did not receive any death certificate in respect of Habib Mian from any hospital. He contradicted Rani Bibi (P.W. 1) by stating that she did not state in her previous statement made during the investigation before him who assaulted whom.
30. After examination of the aforesaid prosecution witnesses, the prosecution case was closed.
31. Thereafter, to enable the accused persons personally to explain the circumstances appearing in the evidence against them, the Trial Court recorded their statement under Section 313 of the CrPC. In their respective statements made under Section 313 of the CrPC, the accused persons pleaded their innocence. They stated that they had abided by the decision taken in panchayati. They further stated that they have been implicated in the case due to enmity.
Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 18/40
32. Since the defence did not examine any witness after the closure of the prosecution case, the Trial Court heard the parties and passed the impugned judgment of conviction and sentence.
33. The operative part of the impugned judgment of the Trial Court reads as under: -
"Therefore, considering the entire evidence as discussed above, it is being clear that due to previous enmity, an altercation took place on the date of occurrence, all of the accused persons assaulted both the deceased persons by several lathi blows with common intention with intent to commit murder, on the basis of inquest report as well as postmortem report, it is also corroborated that several grievous injuries have been found on the persons of the deceased and they have been murdered by hard and blunt substance, i.e. lathi blow and it is opined by the doctors who have conducted postmortem examination of the deceased that death was caused due to haemorrhage and shock and arising out of several injuries of head. As such, the death of both the deceased persons namely: Sabib Mian and Habib Mian have been established caused by hard and blunt substances, i.e. lathi blow and these injuries have been committed by the accused persons, as supported by the eye Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 19/40 witnesses of the occurrence, though, there are minor discrepancies have been found in the evidences of the witnesses, but these are natural one and not fatal to effect the merit of the case and it is also not demolished on the basis of evidence of family members of the deceased. Considering meticulously the evidences available on record, it is also being clear that the motive and manner of the occurrence have also been proved by the prosecution witnesses and on the basis of evidences available on the record, it is also established that all of the accused persons have actively participated in commission of offence, i.e. murder of the deceased Sabib Mian and Habib Mian with common intention of all of them.
Therefore, on the basis of evidences oral and documentary brought by the prosecution on the record as analysed above it is held that the prosecution could have been able to prove the charges of murder of the deceased persons levelled against the accused persons beyond all reasonable doubts. So far as the charges levelled against the accused persons U/s 307, 325 and 323 of the I.P.C. are concerned, it is supported by the witnesses that at the time of occurrence the informant and others tried to intervene and rescue their father and uncle, the accused persons also assaulted them through Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 20/40 which they sustained several injuries on their persons of each other. PW.-1, P.W.-3, P.W.-4 and P.W.-5 have supported and stated during their testimony that they tried to intervene, they also sustained injuries even on head also. But from perusal of entire evidences, it is also apparent that the accused persons have also received injuries and they were admitted in the hospital for treatment, from where, they were arrested, which indicates that there was free fighting committed between the parties, whereas according to provision of section 307 of the I.P.C., it is prescribed that who ever does any act with such intention or knowledge and under such circumstances that if he by that act, causes death, he would be guilty of murder shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is herein before and according to section 325 of the I.P.C it is prescribed that who-ever voluntarily causes grievous hurt shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine and the said grievous hurt, is prescribed U/s 320 of the I.P.C as Emasculation, permanent privation of the sight Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 21/40 of either eye, permanent privation of the hearing of either ear, privation of any member or joint. Destruction or permanent imposing of the powers of any member or joint, permanent dis-figuration of the head or face, fracture or dislocation of bone or tooth, any hurt which endanger life or which causes sufferer to be during the space of 20 days in severe bodily pain or unable to follow his ordinary pursuit."
In view of the required ingredients of the above mentioned provision of law, I have considered the evidences produced on behalf of persecution regarding aforesaid charges, levelled against the accused persons about which, the victim-cum-informant and other witnesses have supported that Qyamuddin Mian, Hadis Mian, Suleman Mian and Nasruddin Mian sustained injury on their persons by lathi blow, caused by accused persons and they have also stated that due to said assault, their head was also injured but the medical officer, who has examined the said injured persons has made his statement as P.W.-7 that injuries found on the person of the injured, caused by hard and blunt substances and most of the injuries have been found simple in nature and it has been suggested by him to get x-ray, but it was not produced by the informant and from perusal of the injury reports, as Ext. 2, 2/1, 2/2, it is mentioned that Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 22/40 about the some injuries found on the person of the injured persons, x-ray has been suggested and most of the injuries have been found simple in nature. No any injury has been corroborated by the reliable and authentic evidence to show the grievous in nature and also no assault allegedly committed by the accused persons over these injured persons are sufficient to establish that these are committed with intention or knowledge, caused death of the injured persons amounts to establish the same in purview of the provision of Section 307 of I.P.C. rather on the basis of evidences available on record, I come to the conclusion that the injured persons have received simple injuries on their person by the act committed by the accused persons.
Therefore, on the basis of evidences oral and documentary brought by the prosecution on the record, as discussed above, I am of the opinion that the prosecution has miserably failed to prove the charges of sections 307, 325 of the I.P.C., levelled against them beyond all reasonable doubts. As such, the accused persons are acquitted of the charges of sections 307 and 325 of the I.P.C., whereas on meticulous consideration of the evidences, I also come to the conclusion that the prosecution could have able to prove the charge of section 323/34 of the I.P.C., levelled Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 23/40 against the accused persons beyond all reasonable doubts. It is therefore, ordered that the accused persons, namely; Hafiz Mian, Khalil Mian, Ibrahim Mian and Qurban Mian are held guilty for the offence punishable U/s 323 and 302/34 of the I.P.C."
(Emphasis supplied)
34. Being aggrieved by the impugned judgment of conviction and order of sentence, the appellants have preferred the present appeal.
35. Mr. Ajay Kumar Thakur, learned counsel for the appellants submitted that the Trial Court has grossly erred in appreciating the evidence on record. He contended that the incident took place immediately after the panchayati in which large persons had assembled. However, no independent witness was examined on behalf of the prosecution during the trial. All the witnesses examined on behalf of the prosecution are family members of the deceased. He submitted that Sayra Khatoon (P.W.3) and Nasruddin Mian (P.W. 4) stated in their deposition that one Basudeo, Shyam Ji Master and Gama were the panches who had decided the dispute between the parties. However, none of the panches was examined on behalf of the prosecution. He contended that the injured Qyamuddin Mian, Suleman Mian, Hadis Mian and Babujan Mian have also not been examined by Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 24/40 the prosecution during the trial. He contended that they were the material witnesses and their withholdment by the prosecution has caused prejudice to the accused persons. He further contended that the two constables, who took the body of the two deceased to Chapra Sadar Hospital have also not been examined by the prosecution and no explanation has been given by the prosecution for their non-examination. He argued that the prosecution has even failed to prove the motive for the occurrence. He stated that neither the cutting of any branch of the pakari tree has been proved by the investigating officer nor he had seized any branch of the pakari tree from the place of occurrence although he inspected the place of occurrence on the date of occurrence itself. He further argued that medical evidence totally belies the case of the prosecution. According to him, the prosecution alleged that all the four accused persons being variously armed with lathi and danda mercilessly and indiscriminately assaulted the two deceased but the postmortem reports of the two deceased reflect that the deceased Sabib Mian had sustained only one ante-mortem injury and the deceased Habib Mian had sustained two ante-mortem injuries out of which one was boggy swelling. He contended that the witnesses have admitted during trial that there was a cross case. They have Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 25/40 also admitted that all the accused persons except Khalil Mian were arrested from the Referral Hospital, Baniyapur on the date of occurrence itself while undergoing treatment. He contended that if a quarrel had taken place in panchayati and the accused persons were also injured and were undergoing treatment in hospital and a case was instituted against the members of the prosecution party, it was for the prosecution to explain under what circumstances they sustained injuries. He contended that the suppression of the facts regarding the incident should have been taken into consideration by the Trial Court and the accused persons should have been given the benefit of doubt. Lastly, he contended that the death of Habib Mian has occurred in mysterious circumstances. The prosecution alleges that he was first taken to Baniyapur Referral Hospital from where he was sent to Chapra Sadar Hospital after providing him first aid and, thereafter, to Patna where he died during treatment. However, neither the medical report regarding the treatment provided to the two deceased at Baniyapur Referral Hospital nor the medical report regarding the treatment to the deceased Habib Mian at Chapra Sadar Hospital nor any specialized centre in Patna has been proved nor the death certificate issued by any hospital has been proved by the prosecution during the trial. It is not known Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 26/40 where and under what circumstances he died. He contended that there is conflict in the evidence as to whether his body was brought first to Baniyapur Police Station in an ambulance on 27.11.2013 or at his house from where the police took the body for postmortem examination. The prosecution has withheld all the evidence of his treatment provided at various places for which no explanation has been given.
36. On the other hand, Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor appearing for the State submitted that the Trial Court has considered all the relevant facts of the case for arriving at a rightful conclusion. He contended that there might be minor variations in the statement of the witnesses, which were quite natural in the given circumstances. He contended that right from the beginning the prosecution is consistent about the name of the accused persons, the weapon used for the offence, the place of occurrence and the manner of assault. He argued that the investigating officer might have committed some error during the investigation, but that would not be fatal to the prosecution case. According to him, Rani Bibi (P.W.1), Sayra Khatoon (P.W.3) and Nasruddin Mian (P.W.4) have fully supported the prosecution case. Right from the beginning, it is the case of the prosecution that all the Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 27/40 accused persons came with lathi and danda from their houses and indiscriminately assaulted the two deceased and the other injured persons. He further contended that the medical evidence fully corroborates the prosecution case.
37. We have given our anxious consideration to the rival submissions and have carefully perused the evidence on record.
38. From the cross-examination of the witnesses, it would be evident that for the same occurrence a counter case was instituted. The prosecution witnesses have admitted that the appellants had also sustained injuries for which they were being treated at the Baniyapur Referral Hospital from where Ibrahim Mian, Qurban Mian and Hafiz Mian were arrested by the investigating officer of the case. On appreciating the evidence, the Trial Court also held that the accused persons did sustain injuries in the incident and while being treated in hospital, they were arrested by the police. Considering that there was a free fight between the parties, the Trial Court acquitted the appellants of the charges under Sections 307 and 325 of the IPC. The prosecution has not explained how the accused persons sustained injuries in the incident for which they were admitted to Baniyapur Referral Hospital.
Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 28/40
39. The investigating officer did not seize the weapon used in the offence, though three of the accused persons were arrested on the date of occurrence itself. He has not produced any material exhibit like blood-stained clothes of the two deceased and the blood-stained cots on which they were taken to the hospital during the trial. On the point of preparation of documents after panchayati, P.W. 1 and P.W. 4 have given conflicting evidence. P.W. 1 states that after panchayati, the decision taken in the panchayati was prepared in writing whereas P.W. 4 states that no such document was prepared. The investigating officer did not investigate the case on this point. He has simply deposed that he did not receive any document of panchayati. He stated that he did not seize any branch of the pakri tree whereas P.W. 3 stated in her deposition that the police seized the branch of the pakri tree from her door. The investigating officer admitted that he did not notice any cut mark on the pakri tree in question.
40. P.W. 4 has admitted in his deposition that the accused persons also filed a case against the members of the prosecution party in which they have been granted bail. The investigating officer has not stated anything about the injury or the case lodged by the accused side.
Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 29/40
41. In a situation like this, it was incumbent upon the investigating officer to find out the truth and to present all the relevant facts before the court.
42. Unfortunately, the investigating officer has failed to discharge the obligation. The fact that FIR was lodged by the accused concerning the same occurrence, the failure of the police to disclose the outcome of the FIR coupled with the fact that the accused were also admitted to the same hospital where the injured members of the prosecution party were being treated, but their injury report was not brought on record and suppressed by the prosecution creates suspicion
43. In the case of a defective investigation, the Court has to be circumspect in evaluating the evidence. In Ram Bali vs. State of Uttar Pradesh, since reported in (2004) 10 SCC 598, the judgment in Karnel Singh vs. State of MP, since reported in (1995) 5 SCC 518 was reiterated by the Supreme Court and it was observed that "In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective." Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 30/40
44. We have seen that all the witnesses examined on behalf of the prosecution except the official witnesses are related to each other. True it is that merely being relatives of the deceased or the injured is no ground to doubt the testimony of the witnesses. However, evidence of such witnesses calls for a greater degree of care and caution in its analysis.
45. It would be evident from the evidence of P.W. 3 and P.W. 4 that in the panchayati Gama, Shyam Ji Master and Basudeo were the panches. According to the prosecution witnesses, immediately after the panchayati was over and panches moved 30-40 steps ahead, the incident took place. Under such circumstances, the investigating officer ought to have examined the aforesaid panches to find out the genesis of the occurrence. Not only that the panches were not examined by the investigating officer, but no person other than the family members of the two deceased was also examined by the investigating officer during the investigation. Likewise, during the trial also no independent witness other than the family members of the two deceased was examined on behalf of the prosecution. From the evidence of the prosecution witnesses, it is clear that at the time of the incident, independent witnesses were present at the place of occurrence. They must have seen Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 31/40 the entire episode. They would have certainly revealed about the genesis and manner of occurrence. In absence of any corroboration of the prosecution case from independent sources, casts a duty upon the Court to be circumspect in evaluating other evidence.
46. Even the injured brothers of the informant Suleman Mian and Babujan Mian and cousin Qyamuddin did not turn up to adduce evidence during the trial. There is no explanation as to why they were not examined during the trial by the prosecution.
47. Be that as it may, since non-examination of independent witnesses or some injured witnesses in itself is not fatal to the case of the prosecution when other prosecution witnesses are found to be trustworthy and reliable, we would analyze the other evidence adduced before the Trial Court hereinafter.
48. When we look at the evidence led during the trial, we find that Nasruddin Mian (P.W. 4), who is the informant of the case has made an omnibus and general allegation in his fardbeyan given to the police that all the four accused persons being variously armed with lathi and danda indiscriminately assaulted both the deceased, namely, Sabib Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 32/40 Mian and Habib Mian and when he and his brothers Suleman Mian and Babujan Mian and his cousin Qyamuddin Mian tried to intervene, they assaulted and injured them too. However, while deposing before the court, he first says that all the four accused persons came with lathi and started assaulting them and then he says Khalil Mian assaulted Sabib Mian on his head and Ibrahim also assaulted him. Thereafter, he says that Qurban Mian and Hafiz Mian assaulted Habib Mian. He has materially improved his version during the trial in order to corroborate the ante-mortem injuries found on the person of the two deceased. In the FIR, it is not mentioned who assaulted whom. The allegation is general and omnibus that all the four assaulted the two deceased with lathi. Further, in the FIR, he has stated that when he and his two brothers and cousin intervened to rescue Sabib Mian and Habib Mian, they were also assaulted, but in deposition, he changed his version by saying that he and his brothers Suleman and Babujan and cousin Qyamuddin also sustained injuries.
49. Indeed, an FIR can never represent the entire evidence. It need not contain an exhaustive account of the incident and minor omissions have to be ignored, where prosecution evidence is otherwise found reliable. However, Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 33/40 when the FIR was promptly lodged and detailed manner of occurrence was narrated in the FIR, but during the trial, an attempt is made by the informant to selectively change the manner of occurrence to suit the findings of the doctor in postmortem examination, it would certainly affect the testimony of the witness. The graphic detail given by the informant in his deposition regarding the manner of assault by the accused persons on the deceased and the injured does not inspire confidence. Furthermore, P.W. 1 and P.W. 3 have not corroborated the graphic detail given by P.W. 4 regarding the assault upon the two deceased. They too claim themselves to be the eyewitnesses to the occurrence.
50. Rani Bibi (P.W. 1) stated in her deposition that all the four accused assaulted Sabib Mian and Nasruddin Mian with lathi and danda, as a result of which, the father of the informant, namely, Sabib Mian died and Nasruddin Mian was taken to Baniyapur Referral Hospital for treatment. She stated that both the deceased sustained injuries from their head to their toes, which would mean from front to back and from one side body to another. She stated that Habib Mian sustained an injury caused by Ibrahim, who assaulted him with lathi. Similarly, Sayra Khatoon (P.W. 3) has stated in her deposition that all the Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 34/40 four accused came with lathi and indiscriminately assaulted both Sabib and Habib. They also assaulted Nasruddin, Qyamuddin and Babujan.
51. Another important aspect of the matter is that according to the testimony of the prosecution witnesses both Sabib Mian and Habib Mian were first taken to Baniyapur Referral Hospital after they had sustained injuries on 23.11.2013 in the morning at about 10:00 AM where Sabib Mian was declared dead after examination and Habib Mian was referred to Chapra Sadar Hospital after giving him first aid and, from Chapra Sadar Hospital, he was taken to Patna where he died during treatment after three days. The prosecution, however, failed to produce any chit of paper to show that the deceased Habib Mian was ever treated at Baniyapur Referral Hospital or Chapra Sadar Hospital or any hospital in Patna. The prosecution has also not examined any doctor in support of its claim that the deceased Habib Mian was ever treated either at Baniyapur or Chapra or Patna in any hospital. Thus, it is left to guesswork as to whether he sustained an injury in the incident and, if yes, what was the nature of the injury. The investigating officer has not investigated the case on this point. There is also no clarity as to how, when and where Habib Mian died. The prosecution Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 35/40 seems to be interested more in hiding the facts from the court than revealing them.
52. Furthermore, the informant (P.W. 4) stated in his deposition that Habib Mian died at Patna after three days and his dead body was taken to the police station by him and the police officer saw the body at 08:00 PM whereafter the body was taken to Chapra for postmortem examination. Similarly, Rakesh Kumar (P.W. 8) stated in his deposition that on 26.11.2013 at 9:30 PM, the body of Habib Mian was brought to the police station in an ambulance and the inquest report was prepared by the then SHO of Baniyapur Police Station, Mr. Bhartendu Sharad. The inquest report (Exhibit-5/1) of Habib Mian would show that it was prepared at 9:30 PM on 26.11.2013 and the informant and one Suleman Mian are the witnesses to the inquest report of Habib Mian. But, Rani Bibi (P.W. 1) stated in her deposition that the dead body of Habib was brought at her door from Patna. Thereafter, information was sent to the police in this regard and the police came and prepared an inquest report and took the dead body in their possession. Thus, we find that there is an apparent contradiction between the testimony of P.W. 4 and P.W. 1. It is not known whether the body of the deceased was brought first at the police Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 36/40 station or the door of the house of P.W. 1. It is also not known where the inquest report of the deceased Habib was prepared. One of the witnesses to the inquest of Habib and Sabib, namely, Suleman Mian has not been examined during the trial and there is no explanation for his non-examination.
53. It is noteworthy that right from the beginning the case of the prosecution is that all the four accused persons indiscriminately assaulted both the deceased, namely, Sabib Mian and Habib Mian and they also assaulted the injured Qyamuddin Mian, Nasruddin Mian, Suleman Mian and Babujan Mian, but the postmortem examination report of the deceased Sabib Mian would suggest that he had sustained only one ante- mortem injury on his head, i.e., swelling over the left parietal region of scalp measuring 3"x3" and the postmortem report of the deceased Habib Mian would suggest that he had sustained only two ante-mortem injuries on his head out of which one was boggy swelling over the head.
54. If all four accused persons had assaulted indiscriminately and repeatedly with lahti to both the deceased persons, the ante-mortem injuries caused on their person would have certainly been many more. The ocular testimony of the witnesses for the prosecution is inconsistent with the medical Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 37/40 evidence.
55. It is a fundamental defect in the prosecution case and it has not been reasonably explained by the prosecution. The witnesses examined during the trial have stated that both the deceased sustained injuries all over their bodies from their head to their toes, but in the postmortem examination, the doctor did not find any antemortem injury on the bodies of the deceased except the injury over their head. Thus, there is an apparent irreconcilable inconsistency between the ocular testimony of the witnesses and the medical evidence.
56. The number of ante-mortem injuries found on the person of the two deceased would clearly demonstrate that at least all the four accused must not have assaulted them. Given the testimony of the witnesses, it is extremely difficult for the Court to come to a definite conclusion as to who were the perpetrators of the offence and who have been falsely implicated in the case.
57. In the cases of enmity, sometimes innocent persons are implicated along with guilty persons. In such cases, the witnesses exaggerate the culpability of the actual assailants and extend the participation of some innocent persons. In such cases, the Court must try to separate the grain from the chaff and Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 38/40 after scrutiny with proper care and caution conclude as to who out of the accused persons can be considered to have actually committed the offence.
58. However, in cases where it is not feasible to separate truth from falsehood because grain and chaff are so inextricably mixed up that separation would amount to a virtual reconstruction of a new case, the evidence has to be discarded in totality.
59. In Balka Singh vs. State of Punjab, since reported in AIR 1975 SC 1962, the Supreme Court observed: -
"It is true that, as laid down by this Court in Zwinglee Ariel v. State of M.P., AIR 1954 SC 15, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 39/40 apply."
60. In Ram Udgar Singh vs. State of Bihar, since reported in (2004) 10 SCC 443, the Supreme Court observed: -
"... Where it is not feasible to separate the truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. ..."
61. It is reiterated that in the present case, it is not possible to separate the grain from the chaff. Hence, the Trial Court ought to have given the benefit of doubt to the accused persons.
62. Thus, in the facts and circumstances of the case, we are of the view that the Trial Court was not justified in convicting the appellants under Sections 302/34 and 323 of the IPC.
63. In view of the foregoing discussions, we are persuaded to conclude that the impugned judgment and order Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021 40/40 cannot be legally sustained. Consequently, the impugned judgment of conviction dated 14.03.2016 and the order of sentence dated 17.03.2016 passed by the learned Additional Sessions Judge-VI, Saran at Chapra in Sessions Trial No.209 of 2014 arising out of Baniyapur P.S. Case No.274 of 2013 are, hereby, set aside.
64. The appellants are acquitted of the charges levelled under Sections 302/34 and 323 of the IPC. Appellant no. 2, namely, Khalil Mian @ Khalil Miya, who is on bail, is discharged from the liabilities of bail bonds. The other three appellants, namely, Hafiz Mian @ Hafiz Miya, Ibrahim Mian @ Ibrahim Miya and Qurban Mian @ Kurban Miya, who are in custody, are directed to be released forthwith, if not required in any other case.
65. The appeal stands allowed.
(Ashwani Kumar Singh, J)
( Arvind Srivastava, J)
kanchan/rohit
AFR/NAFR AFR
CAV DATE NA
Uploading Date 17.08.2021
Transmission Date 17.08.2021