Patna High Court
Qamruzzaman Khan @ Tunmun Khan vs State Of Bihar on 12 April, 2018
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.536 of 1994
Arising Out of PS.Case No. -null Year- null Thana -null District- WESTCHAM PARAN(BETTIAH)
===========================================================
1. Shafi Ahmad Khan @ Shafi Ahmad, son of Idrish Khan
2. Fazlur Rahman Khan @ Fazlur Rahman, son of Amanullah Khan
3. Abdullah Khan, son of Aziz Khan
4. Sukat Khan @ Khalilur Rahman, son of Farooque Khan
5. Farooque Khan, son of Idrish Khan
6. Amanullah Khan, son of Idrish Khan
7. Amjad Khan, son of Farooque Khan
8. Badruzaman @ Tunu, son of Mahmood Alam Khan
9. Izahar Khan, son of Shakil Khan
All residents of village-Dainmarwa, P.S. Ram Nagar, District West
Champaran.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (DB) No. 557 of 1994
Arising Out of PS.Case No. -null Year- null Thana -null District- WESTCHAM PARAN(BETTIAH)
===========================================================
1. Aurangzeb Khan, son of Inspector Khan
2. Nasir Khan, son of Inspector Khan
3. Humayun Khan, son of Abdullah Khan
4. Manir Khan, son of Abdullah Khan
5. Sobrati Khan @ Sobrati Mian , son of Shah Mohammad
6. Imtiaz Khan son of Izhar Khan
All residents of Village Dain Marwa, P.S. Ramnagar, District-West
Champaran.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent/s
with
===========================================================
Patna High Court CR. APP (DB) No.536 of 1994
2/39
Criminal Appeal (DB) No. 575 of 1994
Arising Out of PS.Case No. -null Year- null Thana -null District- WESTCHAM PARAN(BETTIAH)
===========================================================
Qamruzzaman Khan @ Tunmun Khan, son of Mahmood Alam Khan, resident o f
village-Dain Marwa, P.S. Ramnagar, District West Champaran.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
===========================================================
Appearance :
(In CR. APP (DB) No.536 of 1994)
For the Appellant/s : Mr. Kanhaiya Prasad Singh, Sr. Adv.
Mr. Pratik Mishra, Adv.
Mr. Ajay Mishra, Amicus Curiae
For the State : Mr. Shivesh Chandra Mishra, A.P.P.
For the Informant Mr. Neeraj Kumar @ Sanidh, Adv.
(In CR. APP (DB) No.557 of 1994)
For the Appellant/s : Mr. Kanhaiya Prasad Singh, Sr. Adv.
Mr. Pratik Mishra, Adv.
Mr. Ajay Mishra, Amicus Curiae
For the State : Mr. Dilip Kumar Sinha, A.P.P.
For the Informant Mr. Neeraj Kumar @ Sanidh, Adv.
(In CR. APP (DB) No.575 of 1994)
For the Appellant/s : Mr. Kanhaiya Prasad Singh, Sr. Adv.
Mr. Pratik Mishra, Adv.
Mr. Ajay Mishra, Amicus Curiae
For the State : Mr. Abhimanyu Sharma, A.P.P.
For the Informant Mr. Neeraj Kumar @ Sanidh, Adv.
===========================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA)
Date: 12-04-2018
1. All the above stated three appeals have arisen out of
common judgment of conviction and sentence order dated 29.09.1994
and 30.09.1994 respectively passed in Sessions Trial No. 07 of 1991
and accordingly, all the above stated appeals were heard together and
Patna High Court CR. APP (DB) No.536 of 1994
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a common judgment is being passed in all the appeals.
2. All the appellants along with others, except Manzoor
Khan, stood convicted under Section 302 read with Section 149 and
307 read with Section 149 of the Indian Penal Code. Furthermore, the
deceased-appellant in Criminal Appeal No. 571 of 1994 was
separately convicted for the offences punishable under Section 148,
302 of the Indian Penal Code and Section 27 of the Arms Act and
similarly, accused, Qamruzama Khan @ Tunmun Khan was convicted
for the offences punishable under Sections 302/34, 148 of the Indian
Penal Code and 27 of the Arms Act. The appellant no. 1 of Criminal
Appeal No. 536 of 1994, namely, Shafi Ahmad Khan @ Shafi Ahmad
was separately convicted for the offences punishable under Sections
148, 307 of the Indian Penal Code and 27 of the Arms Act. Similarly,
appellants no. 4 and 5 of Criminal Appeal No. 536 of 1994, namely,
Sukat Khan @ Khalilur Rahman and Farooque Khan were convicted
for the offence punishable under Section 307 of the Indian Penal Code
and appellants no. 1, 3 and 4 of Criminal Appeal No. 557 of 1994
namely, Aurangzeb Khan, Humayun Khan and Manir Khan were
convicted for the offence punishable under Section 148 of the Indian
Penal Code whereas appellants no. 2, 3, 7 and 9 of Criminal Appeal
No. 536 of 1994, namely, Fazlur Rahman Khan @ Fazlur Rahman,
Abdullah Khan, Amjad Khan and Izhar Khan as well as appellants
Patna High Court CR. APP (DB) No.536 of 1994
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no. 2, 5 and 6 of Criminal Appeal No. 557 of 1994, namely, Nasir
Khan, Sobrati Khan @ Sobrati Mian and Imtiaz Khan were convicted
for the offence punishable under Section 147 of the Indian Penal
Code. Further the appellant no. 8, namely, Badruzaman @ Tunu of
Criminal Appeal No. 536 of 1994 along with appellant Amanullah
Khan was convicted for the offence punishable under Section 148 of
the Indian Penal Code and 27 of the Arms Act. However, the learned
trial court has observed in the same impugned judgment that appellant
Amanullah Khan was acquitted of the charges for the offence
punishable under Section 148 of the Indian Penal Code. The learned
trial judge convicted the appellants and others in the manner as stated
above. So far as sentence is concerned, the learned trial Judge
sentenced the deceased-appellant Mahmood Alam Khan of Criminal
Appeal No.571 of 1994 to undergo rigorous imprisonment for life for
the offence punishable under Sections 302 and 302/149 of the Indian
Penal Code and further sentenced him to undergo rigorous
imprisonment for one and half years for the offence punishable under
Section 148 of the Indian Penal Code and to undergo rigorous
imprisonment for seven years for the offence punishable under
Section 307 read with Section 149 of the Indian Penal Code and
similarly, the above stated deceased-appellant, Mahmood Alam Khan
again sentenced to undergo rigorous imprisonment for five years for
Patna High Court CR. APP (DB) No.536 of 1994
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the offence punishable under Section 27 of the Arms Act. As regards
the appellant no. 1 of Criminal Appeal No. 536 of 1994, namely,
Shafi Ahmad Khan @ Shafi Ahmad is concerned, he was sentenced to
undergo rigorous imprisonment for life for the offence punishable
under Section 302/149 of the Indian Penal Code, rigorous
imprisonment for seven years for the offence punishable under
Section 307 of the Indian Penal Code but no separate sentence was
passed for the offence punishable under Section 307/149 of the Indian
Penal Code though he was directed to undergo rigorous imprisonment
for one and half years and five years for the offence punishable under
Section 148 of the Indian Penal Code and 27 of the Arms Act,
respectively. The appellants Badruzaman @ Tunu, Qamruzzaman
Khan @ Tunmun Khan and Amanullah Khan were sentenced to
undergo rigorous imprisonment for life under Section 302 read with
Section 149, rigorous imprisonment for seven years under Section 307
read with Section 149 of the Indian Penal Code and rigorous
imprisonment for one and half years and five years under Section 148
of the Indian Penal Code and 27 of the Arms Act respectively.
Furthermore, the appellant Qamruzaman Khan @ Tunmun Khan was
sentenced to undergo rigorous imprisonment for life and similarly,
appellants, Farooque Khan and Sukat Khan were also sentenced to
undergo rigorous imprisonment for life and in addition to that seven
Patna High Court CR. APP (DB) No.536 of 1994
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years under the various punishable sections of the Indian Penal Code.
The appellants, Humayu Khan, Munir Khan, and Aurangzeb Khan
were also sentenced to undergo rigorous imprisonment for life, one
and half years and seven years under various sections of the Indian
Penal Code. Similarly, the appellants, Nasir Khan, Sobrati Khan,
Fazlur Rahman Khan, Amjad Khan, Imteyaz Khan, Izhar Khan and
Abdullah Khan were sentenced to undergo rigorous imprisonment for
a period of one year, for life and for a period of seven years under the
various punishable sections of the Indian Penal Code. The trial court
directed that all the sentences shall run concurrently. The learned trial
Judge also directed the deceased-appellant of Criminal Appeal No.
571 of 1994, namely, Mahmood Alam Khan to pay compensation of
rupees five thousand and other appellants were directed to pay a
compensation of rupees three thousand each and also directed that
realized money shall be distributed equally amongst the next of the
kins of the deceased of the present case and in case of non-payment of
compensation amount by the deceased appellant, Mahmood Alam
Khan he shall undergo further sentence of rigorous imprisonment for
the period of six months whereas remaining appellants (convicts) shall
have to undergo further three months rigorous imprisonment.
3. The facts, which lies to file these criminal appeals, are
that on 11.03.1989 at about 08:30 A.M. PW-14, namely, Mobin Khan
Patna High Court CR. APP (DB) No.536 of 1994
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gave his ferdbeyan to PW-16 Rajendra Kumar, the then police
inspector of Lauriya Police Circle at the field of one Shankar Mahto
to this effect that there was a litigation between him and deceased
appellant, namely, Mahmood Alam Khan in respect of lands of khata
no. 40 containing plot no. 1585, area 8 kattha 5 dhur and due to the
aforesaid land dispute proceeding under Sections 144/145 Cr.P.C. had
been initiated which was pending before the court. He further stated
that he as well as his family members had sown Masoor and rai crop
in the aforesaid land. The crop of rai had ripened and on the same day
i.e. 11.03.1989 at about 06:30 A.M. he came to know that his co-
villagers deceased-appellant Mahmood Alam Khan of Criminal
Appeal No. 571 of 1994 and his henchmen were cutting the crop of
rai from the above stated disputed lands. Having got the aforesaid
information, he along with Ishrak Khan (not examined), Noorul Azam
Khan (not examined), Maksood Alam Khan (not examined), Shami
Khan (PW-7), Yusuf Khan (PW-8), Zamir Khan (not examined) and
Jawed Alam (PW-4) went to the field and saw the Mahmood Alam
Khan and his companions cutting the Rai crop from his field. PW-14
noticed that Mahmood Alam Khan, Shafi Ahmad Khan, Amanullah
Khan, Farooque Khan, Sukat Khan, Amjad Khan, Fazlur Rahman,
Qamruzama @ Tunmun Khan, Badruzama @ Tunu Khan, Sobrati
Miyan, Aurangzeb Khan, Nasir Khan, Humayu Khan, Munir Khan,
Patna High Court CR. APP (DB) No.536 of 1994
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Izhar Khan, Imteyaz Khan, Abdullah Khan and Wasiullah Khan
altogether 18 persons were present there. The informant and his
companions requested the aforesaid persons not to cut the crop from
his field but deceased-appellant Mahmood Alam threatened to shoot
him but PW-14 continued to request the above stated persons.
However, in the meantime, one Manzoor Alam also came there and
started taking side of deceased-appellant Mahmood Alam. PW-14
further stated that a quarrel took place and in course of quarrel, all the
above stated persons took out their respective weapons which had
been hidden in the aforesaid field. The deceased-appellant Mahmood
Alam Khan was armed with licensee rifle, appellant, Shafi Ahmad
Khan was armed with licensee double barrel gun, appellant
Amanullah Khan was armed with double barrel licensee gun of his
father in law, namely, Manzoor Khan, Qamruzama @ Tunmun Khan
was armed with single barrel gun, Badruzama @ Tunu was armed
with air gun, appellant Nasir Khan and Aurangzeb Khan were armed
with bhala, appellants Munir Khan, Humayu Khan and Sukat Khan
were armed with farsa whereas remaining F.I.R. named accused were
carrying lathi and farsa. The informant further stated that deceased-
appellant Mahmood Alam Khan of Criminal Appeal No. 571 of 1994
and appellant Shafi Ahmad Khan again gave threatening to kill the
informant and thereafter, deceased-appellant Mahmood Khan opened
Patna High Court CR. APP (DB) No.536 of 1994
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fire of his rifle aiming the informant and others as a result whereof,
Noorul Azam sustained firearm injury and fell down there and in the
meantime, appellants Shafi Ahmad Khan, Tunmun Khan, Tunu Khan
and Amanullah Khan started making indiscriminate firings which
caused firearm injuries to injured Maksood Khan, Ishrak Khan, Yusuf
Khan, Shami Khan and Zamir Khan and having got fire arm injury,
the aforesaid injured persons, too, fell down in the field of Shankar
Mahto. The appellants assaulted the informant's son namely, Jawed
Alam by means of lathi. The informant and others started fleeing from
the place of occurrence seeing and sensing the dangerous situation and
after having covered some distance, the informant (PW-14) claimed
that he saw towards his backside and noticed that appellants Munir
Khan and Humayu Khan were cutting Noorul Azam Khan by means
of farsa whereas appellants Sukat Khan and Farooque Khan were
assaulting the injured Yusuf Khan by means of farsa and bhala and
the remaining appellants were also assaulting the other injured who
had fallen on the ground. On the noise raised by him and others, the
villagers assembled and witnessed the aforesaid occurrence. The
appellants and others having seen the co-villagers took to their heels
towards south-west corner. PW-14 further stated that when the
appellants and others left the place of occurrence, he along with others
again went to the place of occurrence and found Ishrak Khan, Noorul
Patna High Court CR. APP (DB) No.536 of 1994
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Azam Khan and Maksood Khan lying dead in the field of Shankar
Mahto whereas injured Yusuf Khan, Shami Khan and Zamir Khan
having sustained serious injury were also lying there and they were
wriggling due to pain. The informant (PW-14) further stated that he
sent PW-3, namely, Md. Usman Khan to Ram Nagar police station for
giving information of the occurrence. However, the injured persons
were taken to Ram Nagar hospital on Tyer cart by family members of
the informant. He also noticed one broken handle of a gun as well as
one bhala lying on the place of occurrence. He disclosed the name of
those persons who had witnessed the alleged occurrence.
4. On the basis of ferdbeyan (Exhibit-5) of PW-14, Ram
Nagar P.S. Case No. 15 of 1989 for the offences punishable under
Section 302 and other minor sections of the Indian Penal Code as well
as 27 of the Arms Act was registered and accordingly, formal FIR was
drawn up on the same day at 11:30 A.M. The FIR was sent to the
court which was put up before the concerned Magistrate on
13.03.1989. After investigation charge sheet was submitted, cognizance was taken and the case was committed to the court of sessions, in usual course and accordingly, altogether 18 persons were put on trial before the trial court and all the above stated 18 persons including appellants were charged under various heads. The appellants and other accused were charged jointly as well as Patna High Court CR. APP (DB) No.536 of 1994 11/ 39 separately for the offences punishable under Sections 307, 302, 302/149, 302/34, 307/34, 147, 148, 307/149 of the Indian Penal Code and 27 of the Arms Act. The appellants denied the charges and claimed to be tried.
5. In course of trial, prosecution examined, altogether, 16 witnesses and also got exhibited several documents. The statements of appellants and other accused were recorded under Section 313 of the Cr.P.C. in which they again reiterated their innocence and claimed their false implication. No oral evidence was adduced by the appellants but they got exhibited some documents in support of their defence.
6. The learned trial court having analyzed and scrutinized the evidences available on the record, passed the impugned judgment of conviction and sentence order convicting the appellants including deceased-appellant and acquitting one accused, Manzoor Khan in the manner as we have already stated. Accordingly, altogether 17 appellants preferred four separate appeals but during pendency of criminal appeals, appellant Mahmood Alam Khan of Criminal Appeal No. 571 of 1994 died and accordingly, his appeal was abated.
7. Learned counsel appearing for the appellants assailed the impugned judgment of conviction and sentence order on various Patna High Court CR. APP (DB) No.536 of 1994 12/ 39 grounds. Firstly, it is argued that learned court below failed to take note of this fact that the prosecution witnesses improved and developed their statements during course of trial and, therefore, their credibility was doubtful, particularly, in the circumstance when there was land dispute between the parties. Secondly, it is argued that the doctors, who were examined as prosecution witnesses very clearly admitted that on the alleged date of occurrence, some of the appellants were also examined and injuries were noticed on their person but the prosecution witnesses failed to explain the injuries sustained by the appellants and, therefore, the aforesaid fact goes to show that the prosecution did not come with clean hand and, therefore, on the aforesaid ground alone the prosecution case is liable to be rejected. Thirdly, it is argued that PW-3 went to police station just after the alleged occurrence to lodge the F.I.R. as admitted by the PW-14 in his ferdbeyan (Exhibit-5) as well as in deposition but the report lodged by PW-3 with police was not brought on record by the prosecution and subsequently, the prosecution fabricated and prepared the ferdbeyan of the informant and lodged the present case with false story so that the appellants could be implicated in this case. Fourthly, it is argued that circumstances and evidences which had come in course of trial were not put before the appellants at the time of their examination under Section 313 of the Cr.P.C. and, therefore, the above stated Patna High Court CR. APP (DB) No.536 of 1994 13/ 39 failure on the part of trial Judge caused serious prejudice to the appellants and only on this ground, the impugned judgment of conviction and sentence order is liable to be set aside. In support of above stated contention, the case of Rautu Bodra and another vs. State of Bihar reported in 1999 SCC (Cri) 1319 is placed before the court.
8. Fifthly, it is argued that PW-16 (1st investigating officer) clearly admitted in his evidence that on the alleged date of occurrence he got a wireless message from a nearby police station to this effect that having committed the murder of three persons at village Dainmarwa some unknown persons were fleeing on motorcycle towards Batonia and the defence specifically asked PW-14 regarding the aforesaid fact but with an intent to conceal the aforesaid fact PW-14 denied the above stated question of the defence. He submitted that no doubt, neither prosecution nor the defence took any step to bring the aforesaid wireless message on record though the aforesaid fact had been mentioned by PW-16 at para-52 of the case diary but even if the prosecution and defence failed to bring the aforesaid wireless message on record, then also, it was incumbent duty of the trial Judge to summon the aforesaid wireless message on record so that proper and fair justice could be done in the case but the learned trial Judge failed to do so and, therefore, this Court can draw Patna High Court CR. APP (DB) No.536 of 1994 14/ 39 legitimate inference of the aforesaid laches of the trial Judge. To fortify his above stated contention, he referred the decision of State of Rajasthan vs. Ani @ Hanif and others reported in (1997) 6 SCC
162. Lastly, it is submitted by him that conduct of prosecution witnesses was also not up to the mark rather conduct of prosecution witnesses creates doubt about the prosecution story, particularly, when there was serious land dispute between the parties.
9. On the other hand, learned A.P.P. assisted by learned counsel for the informant supported the impugned judgment of conviction and sentence order submitting that all the eye-witnesses are consistent in their statements and very clearly stated that appellants had participated in the alleged occurrence in which three persons died and several others sustained injury. They further submitted that the presence of injured witnesses at the time of alleged occurrence cannot be doubted and PW-7, PW-8 and PW-12 being injured witnesses very clearly narrated the entire occurrence disclosing the role played by each appellants. They, further, submitted that so-called contradictions as referred by the learned counsel for the appellants in course of argument, are not contradictions and at best can be treated as omission and mere on the ground of omission, the entire prosecution evidence cannot be doubted. They further submitted that moreover, in the present case, the appellants failed to draw the attention of prosecution Patna High Court CR. APP (DB) No.536 of 1994 15/ 39 witnesses towards their previous statements in accordance with law and, therefore, even if there is any contradiction in the statement of prosecution witnesses, then also, the appellants cannot get benefit of aforesaid contradictions. In support of aforesaid contention, they relied upon decision of Md. Badaruddin Ahmed vs. State of Assam reported in 1989 Cri. L.J. 1876 in which it has been held by the Hon'ble Court that:-
"The correct procedure to be followed which would be in conformity with Section 145 of the Evidence Act to contradict the evidence given by prosecution witness at trial with a statement made by him before the police during investigation will be to draw the attention of the witness to that part of the contradictory statement which he made before the police and questioned him whether he did in fact made that statement and if the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. However, if, on the other hand, the witness denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc. (any identification mark) and when the investigating officer who had actually recorded the statements in question comes into witness box, he should be questioned as to whether these particular statements had been made to him during investigation by the particular witness, and obviously after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the investigating officer would prove the statements B-1 to B-1, B-2 to B-2 which are then exhibited as Ext.P.1, Ext.P.2 etc. (exhibition mark) in the case and will go into evidence, and may, thereafter, be relied on by the accused as contradictions."
10. They further submitted that it is admitted case that lis regarding the disputed land was pending between the parties at the Patna High Court CR. APP (DB) No.536 of 1994 16/ 39 time of alleged occurrence and the witnesses very clearly stated that appellants were illegally cutting Rai crop from the disputed lands and when the prosecution party went there to forbade them, the appellants made indiscriminate firing causing death of three persons and injury to several persons and therefore, there is no scope to interfere into the impugned judgment of conviction and sentence order.
11. Having heard the contentions of both the parties, I went through the record along with lower court record. As I have already stated that altogether 16 prosecution witnesses were examined by the prosecution in course of trial. The death of three persons is not in dispute but even then I would like to refer the statement of PW-1, Dr. P.N. Jha, PW-2, Dr. Sunil Kumar and PW-11 Dr. Rambilas Choudhary as PW-1, Dr. P.N. Jha did post mortem examination on the corpus of deceased Ishraque Khan son of Moater Khan, resident of village-Dainmarwa P.S. Ramnagar, District West Champaran on 11.03.1989 at 04:15 P.M. Similarly, PW-2 Dr. Sunil Kumar on the same day did post mortem examination on the dead body of Maqsood Alam Khan, son of Faiz Mohammad Khan, resident of village- Dainmarwa P.S. Ramnagar, District West Champaran at 04:50 P.M. and PW-11 Dr. Rambilash Choudhary on the same day did post mortem examination on the dead body of deceased Nurul Azam Khan, son of Sri Yusuf Khan, resident of village-Dainmarwa P.S. Ramnagar, Patna High Court CR. APP (DB) No.536 of 1994 17/ 39 District West Champaran.
PW-1 stated that he found rigor mortis present all over the body and during post mortem examination he found the following ante mortem injuries:-
(i) Circular, lacerated, inverted margined wound on left lower chest, 8th intercostal-space ¼" in diameter and opined that above stated injury was wound of entry.
(ii) Lacerated, everted, margin wound of 3" diameter on the left side of back, 8"
above and internal to injury no. 1 and opined that aforesaid injury was wound of exit.
(iii) Bruise 3" x 1" below right elbow in front.
This witness stated that on dissection he found that above stated injuries no. (i) and (ii) were communicating to each other and left lung and thorasic aorta lacerated. He also found left pleural laceration and the thorasic cavity full of blood and blood clots. He also opined that injuries no. (i) and (ii) were caused by firearm of high velocity whereas injury no. (iii) was caused by hard and blunt substance. He also opined that injury no. (i) and (ii) were sufficient to cause death of the deceased. This witness proved the post mortem report of the deceased, Ishraque Khan as Exhibit-1.
From perusal of statement of this witness as well as Exhibit-1, it is obvious that deceased Ishraque Khan sustained one firearm injury which became fatal to him. Therefore, it is established from the evidence that deceased died of the injuries sustained by him Patna High Court CR. APP (DB) No.536 of 1994 18/ 39 through the firearm.
PW-2 Dr. Sunil Kumar examined the deceased Maqsood Alam Khan and found rigor mortis present and furthermore he found following ante mortem injuries:-
(i) One circular lacerated and inverted margined wound situated 1" below umbilicus measuring 1/4" in radius and he opined that aforesaid injury was wound of entry.
This witness also noticed that the area of aforesaid injury was slightly charred.
(ii) Lacerated everted margin wound on right buttock. The margin of the wound was nagged and the diameter of the wound was about 1" and in the opinion of this witness, the aforesaid injury was wound of exit.
(iii) One contusion 4" x 1" on the back chest.
(iv) One contusion on left upper arm 2 ½" x ½".
This witness further stated that on dissection he found that above stated injuries no. (i) and (ii) were communicating to each other. This witness also stated that he found laceration of small intestine, urinary bladder and misentry. He also found that 5th lumber vertebra and the right illium fractured and the stomach was found containing four ounce of liquefied fluid. This witness stated that injury no. (i) and (ii) were caused by firearm whereas injury no. (iii) and (iv) were caused by hard and blunt substance. This witness also stated that injury no. (i) and (ii) were sufficient to cause death in ordinary course of nature. This witness proved the post mortem report of Maqsood Alam Khan as Exhibit-1/1. From bare perusal of deposition of this witness as well as Exhibit-1/1, it is obvious that Patna High Court CR. APP (DB) No.536 of 1994 19/ 39 deceased Maqsood Alam Khan died of the injuries sustained by him through firearm.
PW-11 Dr. Rambilash Choudhary stated that on 11.03.1989 he did post mortem examination on the dead body of deceased Nurul Azam Khan aged about 30 years a Muslim male. He further stated that he found the rigor mortis present in both the limbs. He also found following ante mortem injuries:-
(i) One incised wound 5" x 1"
up to bone deep on the left parietal region.
(ii) One incised wound 2 ½" x ½" up to bone deep on occipital region.
(iii) One incised wound 2" x 1"
up to bone deep on the left side of scalp.
(iv) One incised wound between the right thumb and index finger 1" x ½" x muscle deep.
(v) One incised wound on the palmer surface of the left hand measuring 2" x ¼" x muscle deep.
(vi) One circular lacerated and inverted margin wound of about ¼" diameter situated on the right side of the chest which was wound of entry.
(vii) One lacerated everted margin wound of about 2" diameter situated on the lateral aspect of the left side of the chest and in the opinion of this witness the aforesaid wound was wound of exit.
This witness opined that injury no. (vi) and (vii) were communicating to each other. The aforesaid witness stated that injury no. (vi) and (vii) were sufficient to cause instantaneous death and the aforesaid injury no. (vi) and (vii) were caused by firearms of high velocity whereas remaining injuries were caused by sharp cutting weapon. This witness proved the post mortem report of deceased Patna High Court CR. APP (DB) No.536 of 1994 20/ 39 Nurul Azam Khan as Exhibit-1/2. From bare perusal of statement of this witness as well as Exhibit-1/2, it is crystal clear that the deceased Nurul Azam Khan sustained firearm injury and several incised wounds said to be caused by sharp cutting weapon and died of the aforesaid injuries.
Therefore, on the basis of aforesaid discussion, it is clear that all the above stated three deceased persons died having sustained firearm injuries and there is nothing on the record to disbelieve the aforesaid facts.
12. The learned trial Judge after scrutinizing the materials available on the record held that it were appellants who committed the murder of above stated deceased persons. Therefore, now it has to be seen as to whether the aforesaid findings of learned trial Judge is correct or not.
13. It is the case of the prosecution that it were appellants and some others who were forcibly cutting RAI crop from Khesra no. 1585 situated at Village Dainmarwa and when the prosecution party forbade them to do so, they made firing and assaulted the prosecution party by means of sharp cutting weapons and in that course, three persons died having sustained firearm injury whereas some other persons sustained injury.
14. The prosecution, to prove the aforesaid facts, Patna High Court CR. APP (DB) No.536 of 1994 21/ 39 examined PW-4 Jawed Alam, PW-7 Shami Khan, PW-8 Yusuf Khan and PW-12 Zamirul Azam Khan and claimed that the aforesaid prosecution witnesses had sustained injury in the alleged occurrence.
15. PW-14 Mobin Khan, the informant of this case, stated in his ferdbeyan (Exhibit-5) that Yusuf Khan (PW-8), Shami Khan (PW-7), Zamirul Azam Khan (PW-12) and Jawed Alam (PW-4) had sustained injury in the above stated occurrence. PW-4 Jawed Alam at para 31 of his cross examination stated that he sustained injury on his hand and he had shown his injury to the doctor as well as police but admittedly, no injury report of PW-4 has been brought on record by the prosecution and, therefore, it cannot safely be said that PW-4 had sustained injury in the alleged occurrence.
16. So far as PW-7, PW-8 and PW-12 are concerned, the prosecution examined PW-9 Dr. Prem Pushpa Lohia who stated that on 11.03.1989 at about 12:55 P.M. he examined PW-8 Yusuf Khan and found following injuries on his person:-
(i) Stiched wound over vortex 6" in length. X-ray of the skull showed fracture of the skull bones.
(ii) Bandaged wound
right-fore-arm.
(iii) Swelling and
tenderness over right side of lower part of
chest.
The patient has difficulty in taking deep breath. X-ray of chest showed fracture of 5th and 6th right ribs. This witness found two grievous injury and one simple injury on the person of PW-8 Yusuf Patna High Court CR. APP (DB) No.536 of 1994 22/ 39 Khan. This witness further stated that on the same day at 12:50 P.M. he examined PW-7 Shami Khan and found following injuries:-
(i) Bandaged wound on right side of neck. On inspection after opening the bandage he found two holes, one about of ½" diameter and the other of about 1"
diameter are present. The margin of the bigger hole was lacerated and charred.
(ii) Swelling and deformity of the left forearm, X-ray plate showed fracture of both radius and ulna.
(iii) Bruise 1 ½" in diameter over upper part of lateral aspect of right arm.
(iv) Abrasion 1" in diameter over right forearm.
It is obvious from the statement of PW-9 that PW-7 had also sustained one grievous injury and his rest injuries were simple in nature. This witness further stated that on the same day at 01:00 P.M., he examined PW-12 Jamirul Azam Khan and found following injuries on his person:-
(i) Bandaged wound over scalp. On inspection of the wound, he found one stitch wound 5" in length and other stiched wound 4" in length. He further found that area below the wound depressed and there was a loss of sensation in the right lower limb. X-ray showed depressed fracture of the skull bones under the wound.
(ii) Tenderness and swelling in an area of about 3" in diameter over the lateral aspect of right thigh.
The evidence of this witness goes to show that PW-12 had also sustained one grievous injury and one simple injury. PW-9 proved the injury reports of aforesaid injured persons as Exhibit-2 Patna High Court CR. APP (DB) No.536 of 1994 23/ 39 series. The testimony of PW-9 and Exhibit-2 series go to show that PW-7, PW-8 and PW-12 had sustained injury on 11.03.1989 and if the testimony of PW-9 coupled with Exhibit-2 series are taken together with Exhibit-5 as well as statement of PW-14, then it has no room to doubt that in the alleged occurrence, PW-7, PW-8 and PW-12 had sustained injuries. Therefore, it is obvious from the aforesaid discussions that PW-7, PW-8 and PW-12 were present on the place of occurrence when the occurrence took place and in the said occurrence they sustained injury.
17. PW-3 Md. Usman Khan claimed before the court that when having got information regarding cutting of crop from the disputed field by the appellants he went to his field, he saw that hot exchange of words was going on between both the parties and in that course, Mahmood Khan fired from rifle causing firearm injury to deceased Nurul Azam and after that appellants Amanullah Khan, Shafi Ahmad Khan, Kamruzzama @ Tunmun, too, made indiscriminate firing as a result whereof, Ishraque Khan, Maqsood Khan, Shami Khan and Zamirul Azam sustained firearm injury. This witness further claimed that Munir Khan, Humayu and Sukat were carrying farsa whereas appellants, Aurangzeb Khan, Nasir Khan and Farooque Khan were carrying bhala. He further stated that appellants Fazlur Rahman Khan, Amjad Khan, Izhar Khan, Imteyaz Khan, Patna High Court CR. APP (DB) No.536 of 1994 24/ 39 Abdullah Khan, Wasiullah Khan and Sobrati Mian were carrying lathi and all the aforesaid persons started assaulting the persons, who had fallen on ground having sustained firearm injury. Admittedly, this witness is brother of informant.
18. PW-5, namely, Mohibullah Khan states that on the alleged date of occurrence at about 06:30 A.M. he had gone towards his filed which is situated towards south-east of his village. He further states that he saw 26-27 persons were cutting RAI crop from a field. The aforesaid persons were henchmen of Mahmood Khan and Shafi Ahmad Khan. He claims that he had identified Mahmood Khan, Shafi Ahmad Khan, Dhunmun Khan, Tunnu Khan, Amanullah Khan, Farooque Khan, Sukat Khan, Amjad Khan, Fazlu Khan, Humayu Khan, Manir Khan, Aurangzeb Khan, Nasir Khan, Izhar Khan, Imteyaz Khan, Asimullah Khan, Abdullah Khan and Sobrati Mian. He noticed that Mahmood Khan was armed with rifle, Dhunmun Khan was armed with single barrel gun, Tunnu Khan was armed with air- gun, Shafi Ahmad Khan was armed with double barrel gun, Amanullah Khan was armed with double barrel gun, Humayun, Manir and Sukat were armed with farsa, Aurangzeb Khan, Nasir Khan and Farooque Khan were armed with bhala whereas Sobrati, Imteyaz, Amjad, Fazlu, Wasiullah, Izhar and Abdullah were armed with lathi. He further claims that Maqsood Khan, Usman Khan, Md. Azam Patna High Court CR. APP (DB) No.536 of 1994 25/ 39 Khan, Israfil Khan came there and forbade the aforesaid persons from cutting RAI crop from the said field but the Mahmood Khan threatened them to leave the place otherwise they will be killed and thereafter, the aforesaid persons proceeded ahead whereas Maqsood Khan etc. started retreating and when they reached in the field of Shankar Koiri, the appellant Mahmood Khan opened fire of his rifle upon Nurul Azam Khan which hit him and he fell down there. Humayu Khan and Manir Khan started cutting Nurul Azam by their respective farsa. Appellant Mahmood again opened fire of his rifle which hit Ishraque Khan and he, too, fell down there and after that Imteyaz and Sobrati Mian assaulted him by means of lathi. He further states that Dhunmun @ Kamruzzaman Khan opened fire of his single barrel gun which hit Maqsood Alam Khan, who fell down there and after that appellant Nasir and Aurangzeb started assaulting him with back portion of the bhala. Further he states that appellant Shafi Ahmad opened fire of his double barrel gun which hit Shami Khan and he, too, fell down there and thereafter, Shafi Ahmad came running there and started assaulting him with back portion of his gun. Fazlu Khan, Abdullah Khan and Izhar Khan also assaulted Shami Khan by means of lathi. The back portion of gun was broken and fell down there. The aforesaid broken back portion of gun was seized by the police from the place of occurrence. He further states that Sukat Khan Patna High Court CR. APP (DB) No.536 of 1994 26/ 39 gave farsa blow causing head injury to Yusuf Khan whereas Farooque Khan gave farsa blow to Yusuf which hit on his hand. Fazlu Khan also assaulted Yusuf by means of lathi. He further states that Amirullah Khan, too, opened fire of his double barrel gun upon Zamirul Azam but, fortunately, bullet did not hit him and when he tried to flee from there, Humayun gave farsa blow to him but back portion of farsa hit on his head and he fell down there and thereafter, Amjad and Asiullah assaulted him by lathi. Tunnu Khan opened fire of his air-gun upon Bablu @ Jawed Alam but he escaped unhurt. However, Abdullah Khan gave lathi blow to Bablu as a result of which he sustained lathi injury on his hand and he, too, fell down there. He further claims that Maqsood Alam Khan, Nurul Azam Khan and Ishraque Khan died then and there whereas remaining persons sustained severe injuries. The injured persons were sent to Ram Nagar Hospital on tyer cart. He further claims that police came on the place of occurrence and searched the house of Mahmood Khan and in course of search, one air-gun was recovered from his house. This witness claims that Shafi Ahmad and Mahmood Khan are his own maternal brothers. This witness has been cross examined by the defence at length and except minor omissions and contradictions, there appears to be nothing in his depositions on the basis of which his statement could be discarded.
Patna High Court CR. APP (DB) No.536 of 1994 27/ 39
19. It is pertinent to note here that this witness is an independent witness and he is not only related with informant and others but also related with some of the appellants. The appellants could not bring any material to show as to why this witness has deposed against them and, therefore, we are of the opinion that this witness is a very reliable witness. The learned trial court has discussed the deposition of this witness at length and relied upon the testimony of this witness. We are also in agreement with the learned trial court because as we have already stated that there is nothing in the entire deposition of this witness on the basis of which his testimony could be disbelieved.
20. PW-6, namely, Md. Azam Khan states that while he was returning from his field, he witnessed the entire occurrence. This witness narrated the entire occurrence in the manner as narrated by PW-5. This witness also stated that in the occurrence, three persons died whereas three persons sustained injury. This witness does not say that Jawed Alam (PW-4) had also sustained injury in the aforesaid occurrence but as we have already held that no reliance can safely be placed on the testimony of PW-4 and, therefore, even if this witness does not name Jawed Alam in the list of injured persons, then also, it does not make any difference. The important thing is that this witness supports the prosecution story as well as involvement of the Patna High Court CR. APP (DB) No.536 of 1994 28/ 39 appellants in the alleged crime and we do not find any major contradiction and omission in the deposition of this witness and, therefore, in our view, the presence of this witness on the place of occurrence cannot be doubted.
21. PW-7, namely, Shami Khan states that on the alleged date of occurrence at about 06:00 A.M. he was at his door and Bablu Khan came there and informed that the appellants were cutting RAI from his field. He along with others went to the field and when forbade the appellants, the appellants assaulted him and others in the manner as stated by PW-5 and PW-6. This witness, specifically, states that when the appellants started making fire and assaulting the prosecution party, he tried to flee from there but Shafi Ahmad Khan opened fire of his double barren gun which hit on right side of his neck as a result whereof, he fell down there and, thereafter, Shafi Ahmad Khan came running there and started assaulting him with back portion of the gun and in the meantime, Fazlu Khan, Izhar Khan and Abdullah Khan also came running there and they, too, started assaulting him by means of lathi as a result where of his left hand was broken and he sustained three to four lathi blows on his right hand as a result whereof he became unconscious. This witness further states that he regained his consciousness in Bettiah Hospital where he remained for near about 20 to 25 days and after that his statement was Patna High Court CR. APP (DB) No.536 of 1994 29/ 39 recorded by the police. This witness further states that the disputed land belonged to Nirwan Khan, who happened to be his grand father, who had given the aforesaid land to his father and since then the aforesaid land was in their possession. He further states that 10 kattha land of the disputed plot had been given to father of appellant Mahmood Alam Khan for running brick kilns and subsequently, after ten years father of appellant Mahmood Alam Khan removed his brick kilns from the aforesaid land. He also admits that appellant Mahmood Alam Khan was demanding the aforesaid land and when he could not succeed to get the aforesaid land, he got initiated a proceeding under Section 144 of the Cr.P.C. on the basis of forged documents and the aforesaid proceeding was subsequently converted under Section 145 of the Cr.P.C. This witness is an injured witness and therefore, the presence of this witness on the place of occurrence could not be denied. Although, this witness has been cross examined at length by the defence but in course of hearing, learned counsel for the appellants could not succeed to elicit anything from the deposition of this witness on the basis of which the testimony of this witness could be disbelieved.
22. Similarly, PW-8, namely, Yusuf Khan is also an injured witness and this witness reiterates the manner of occurrence disclosing the involvement of the appellants and, specifically, states Patna High Court CR. APP (DB) No.536 of 1994 30/ 39 that appellant Sukat Khan gave farsa blow on his head and subsequently appellant Farooque assaulted him using bhala as lathi and similarly Fazlur Rahman also assaulted him with lathi as a result where of he became unconscious. He states that he regained his consciousness in the hospital and came to know that some persons had also sustained injury who had been brought in the same hospital. He states that he remained in the hospital for near about 23 to 24 days and after that he went to police station to make his statement. He too admits that a proceeding under Section 144 of the Cr.P.C. had been initiated and the said proceeding was subsequently converted into Section 145 of the Cr.P.C. He further states that the appellants were making false claim over the lands in question on the basis of forged documents. This witness narrates the place of occurrence as well as topography of the land on which the quarrel started. According to prosecution case, this witness had sustained injury in the occurrence and the injury of this witness has been proved by the doctor and, therefore, the presence of this witness at the time of alleged occurrence cannot be doubted.
23. PW-12, Jameerul Azam Khan is also an injured witness and he also narrated the similar story as stated by other injured witnesses and, specifically, stated that Amanullah Khan opened fire of his double barren gun upon him but, luckily, fire did Patna High Court CR. APP (DB) No.536 of 1994 31/ 39 not hit him and out of fear he fell down there and tried to flee from there but Humayun Khan hurled farsa on him and wooden portion of farsa hit his head and he again fell down and thereafter, Amjad Khan and Masiullah Khan assaulted him with lathi. He became unconscious and regained his consciousness in Bettiah Hospital. He further states that after 28 to 29 days of the occurrence his statement was recorded at Bettiah Hospital.
24. PW-9, namely, Dr. Prem Pushpa Lohia has proved the injury reports of injured persons of this case and from perusal of injury reports (Exhibit-2 series), it is obvious that injuries sustained by injured persons of this case were not possible to be self inflicted and, therefore, there is no room to doubt about the Exhibit-2 series. Furthermore, from conjoin perusal of Exhibit-2 series as well as depositions of injured prosecution witnesses, we find that all the injured prosecution witnesses of the present case had sustained injury in the alleged occurrence.
25. PW-10 Kalimul Rahman produced a document which was marked as Exhibit-3 and there is nothing important in the deposition of this witness.
26. PW-13 Prabhunath Upadhyay was officer in charge of Ram Nagar police station at the relevant time. This witness stated that he took charge of investigation from S.I., Rajendra Kumar. This Patna High Court CR. APP (DB) No.536 of 1994 32/ 39 witness stated that he recorded the statements of prosecution witnesses, received post mortem reports of the deceased persons and submitted charge sheet. This witness stated that witnesses had come to the police station and after that their statements were recorded by him. The attention of this witness was drawn towards the previous statements of prosecution witnesses.
27. PW-14, namely, Mobin Khan is informant of the present case. This witness also supported the prosecution case and specifically stated that plot no. 1585 pertaining to khata no. 40 area 8 kattha 5 dhur, over which RAI had been harvested, belonged to him. This witness admitted that proceeding under Sections 144 and 145 of the Cr.P.C. had been initiated in respect of the aforesaid land. This witness named all the appellants except appellant Tunnu Khan. This witness stated that kunda of a gun, one bhala and two empty cartridges were recovered from the place of occurrence. This witness has been cross examined at length. This witness, specifically, denied the suggestion of defence that crop of RAI had not been planted by them. Moreover, this witness has proved manner of occurrence, place of occurrence as well as involvement of the appellants in the present crime. This witness admitted at para 36 of his cross examination that he had made statement before the police to this effect that after the occurrence he had seen some persons fleeing towards Bairari on Patna High Court CR. APP (DB) No.536 of 1994 33/ 39 motorcycle. Learned counsel for the appellants on the basis of aforesaid admission of PW-14 tried to convince us that some unknown persons had committed the alleged occurrence and due to previous enmity and land dispute, the informant implicated the appellants but we are not at all convinced with the aforesaid submission of learned counsel for the appellants because even if it assumed that PW-14 had claimed before the police to have seen some persons fleeing towards the Bairari on motorcycle after the alleged occurrence, then also, the aforesaid admission does not belie the remaining statement of PW-14 and other witnesses and moreover, it is specific case of the prosecution that not only appellants but some unknown persons had also participated in the alleged crime. So even if after the occurrence the above stated unknown persons fled on a motorcycle towards Bairari and the aforesaid fact was disclosed by the PW-14 before the police, then in that circumstance also, the aforesaid disclosure does not affect the testimony of PW-14.
28. PW-15 is a formal witness and there is nothing important in his deposition.
29. PW-16, namely, Rajendra Kumar is first investigating officer. This witness states that on the alleged date of occurrence, he was at Ram Nagar police station and got information that firing had been made in village Dainmarwa and some persons Patna High Court CR. APP (DB) No.536 of 1994 34/ 39 died in the aforesaid firing. This witness states that he entered the aforesaid information as Sanha no. 181 dated 11.03.1989 and proceeded to Village Dainmarwa along with officer in charge A.K. Ghosh, A.S.I. Ranveer Singh and other constables. This witness identified the sanha entry which has been marked as "X" for identification. He further states that he reached at Village Dainmarwa at about 08:00 A.M. and recorded the ferdbeyan of PW-14 at 08:30 A.M. The aforesaid ferdbeyan was recorded at the field of one Shankar Mahto. He further stated that he forwarded the aforesaid ferdbeyan to officer in charge of Ram Nagar police station. The aforesaid ferdbeyan has been marked as Exhibit-5. He prepared the inquest report of deceased persons, recorded further statement of informant and sent the dead bodies to Bettiah hospital for post mortem. He inspected the place of occurrence and found that on plot no. 1585 area 8 kattha 5 dhur there was crop of rai, masoor and tisi. He further found that in east portion of the aforesaid plot there was crop of rai which was disputed. He also found that some crop of rai had already been cut. He disclosed the boundary of aforesaid plot. He found dead body of deceased Israil on the east ridge of field of Shankar Mahto as well as Nurul Azam and at the distance of 3 meter from the aforesaid dead bodies, dead body of Maqsood was also lying there. He found huge blood there. He also stated that he found broken Patna High Court CR. APP (DB) No.536 of 1994 35/ 39 wood of a gun. He seized the aforesaid broken wood of gun (hattha). He also seized empty cartridges, blood stained earth etc. and on his dictation the then officer in charge A.K. Ghosh prepared the seizure list. He recorded the statements of witnesses and recovered one air- gun from the house of Mahmood Alam Khan. He arrested Mahmood Alam, Shafi Ahmad and Imteyaz Khan. He further stated that he found a cut wound on the head and swelling on right palm of Mahmood Alam. He also found three injuries on the person of Shafi Ahmad. He further admitted that he issued requisition of injuries of aforesaid persons. A specific question was asked by this court as to whether he had seen the injured persons of the present case or not whereupon he disclosed that he had not seen the injured persons of this case as the injured persons had already sent to hospital. This witness admitted that he had not mentioned the aforesaid fact in the case diary. However, at para 20 of his cross examination he stated that on 14.03.1989 he went to M.J.K. Hospital, Bettiah and found injured Yusuf Khan. He further stated that he tried to record his statement but he was not able to give statement. He also found injured Shami Khan in the same hospital but he was in unconscious state and was not able to give his statement. Similarly, he found injured Zamirul Azam in the same hospital but he was also not able to give statement. Further this witness stated that he handed over charge of investigation to PW-13 Patna High Court CR. APP (DB) No.536 of 1994 36/ 39 Prabhunath Upadhyay on the direction of Superintendent of Police. At this juncture, we would like to mention here that in course of hearing, the learned Additional Public Prosecutor assisted by learned counsel for informant submitted that as a matter of fact, PW-16 was not making proper investigation as he did not record the statements of witnesses nor arrested the appellants and thereafter, a complaint was made to Superintendent of Police, who directed him to hand over charge of investigation and thereafter he handed over charge of investigation to PW-13. This witness in his cross examination admitted that he had not got information of the alleged occurrence from family members of the informant but he did not mention the name of source through which he had got information of the alleged occurrence. This witness at para 47 of his cross examination admitted that at para 52 of the case diary, he had written that a wireless message from officer in charge of Semra police station had been received and through the aforesaid wireless message, he was informed that 5 to 7 persons had gone to village Dainmarwa by the motorcycle and after committing the murder they returned. Learned counsel for the appellants tried to convince us that aforesaid entry in the case diary fortifies the assertion of defence that unknown persons had committed the alleged crime but we are unable to accept the aforesaid contention because the aforesaid wireless message has not been Patna High Court CR. APP (DB) No.536 of 1994 37/ 39 brought on record and moreover, we have already stated that some unknown persons had also participated in the alleged crime as per prosecution case. Therefore, even if the aforesaid entry is believed to be true, then also, it cannot be said that appellants had not participated in the alleged crime. The attention of this witness was drawn towards previous statements of prosecution witnesses and except only some omissions hither and thither, there is no major contradictions in the statements of prosecution witnesses and it is well settled principle of law that mere omission in the statement of a witness does not render the statement of witness worthless. Therefore, even if there are some omissions in the deposition of prosecution witnesses, then also, there testimonies cannot be thrown out only on the basis of above stated omissions.
30. Learned counsel for the appellants also tried us to convince that questions were not properly framed under Section 313 of the Cr.P.C. as a result whereof serious prejudice was caused to the appellants but we are again respectfully unable to accept the aforesaid contention of learned counsel for the appellants because the learned trial court framed proper questions and put before them almost all the circumstances and evidences which came against the appellants in course of trial and, therefore, in our opinion, in cannot be said that any prejudice has been caused to the appellants.
Patna High Court CR. APP (DB) No.536 of 1994 38/ 39
31. On the basis of aforesaid discussions, I find that prosecution has proved place of occurrence, manner of occurrence as well as involvement of the appellants and furthermore, I find that prosecution also succeeded to prove that it were appellants, who forcibly wanted to cut RAI crop and when the prosecution party including deceased persons went there to forbid them to do so, the appellants committed murder of three persons and injured the others and, therefore, prosecution succeeded to prove that appellants were aggressor and in our view, the learned trial court rightly convicted and sentenced the appellants. Furthermore, I do not find any ground to interfere into the impugned judgment of conviction and sentence order.
32. Accordingly, these criminal appeals stand dismissed and the impugned judgment of conviction and sentence order are hereby confirmed. The appellants, namely, Shafi Ahmad Khan @ Shafi Ahmad, Fazlur Rahman Khan @ Fazlur Rahman, Abdullah Khan, Sukat Khan @ Khalilur Rahman, Farooque Khan, Amanullah Khan, Amjad Khan, Badruzaman @ Tunu, Izahar Khan, Aurangzeb Khan, Nasir Khan, Humayun Khan, Manir Khan, Sobrati Khan @ Sobrati Mian, Imtiaz Khan and Qamruzzaman Khan @ Tunmun Khan are on bail. Their bail bonds stand cancelled. The learned trial court is directed to issue warrant of arrest against the appellants within Patna High Court CR. APP (DB) No.536 of 1994 39/ 39 fortnight so that the appellants could be sent to jail to serve out their sentences as imposed by the learned trial court passing impugned judgment.
(Hemant Kumar Srivastava, J) Rajendra Kumar Mishra, J: I agree (Rajendra Kumar Mishra, J) SHAHZAD/-
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