Jharkhand High Court
Faiz Mirja vs The State Of Bihar (Now Jharkhand) on 13 June, 2018
Equivalent citations: AIRONLINE 2018 JHA 126
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
Cr. Appeal (DB) No.75 of 1996(R)
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.75 of 1996(R)
(Against the Judgment of conviction and Order of sentence dated
27.04.1996, passed by the 1st Additional Sessions Judge, Giridih, in S.T.
No.88 of 1995)
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Faiz Mirja .... Appellant
Versus
The State of Bihar (now Jharkhand) ..... Respondent
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PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
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For the Appellant : Mr. Tarun Kumar, Advocate
For the State : Mr. Arun Kumar Pandey, Advocate
For the Informant : Mrs. Vandana Singh, Advocate
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C.A.V. on: 10.04.2018 Pronounced on: 13.06.2018
H.C. Mishra, J.:- Heard learned counsel for the appellant and learned counsel for
the State as also learned counsel for the Informant.
2. Appellant is aggrieved by the impugned Judgment of conviction and Order of sentence dated 27.04.1996, passed by learned 1st Additional Sessions Judge, Giridih, in S.T. No.88 of 1995, whereby, the appellant Faiz Mirja has been found guilty and convicted for the offences under sections 302 and 307 of the Indian Penal Code and Section 27 of the Arms Act. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal code, R.I. for seven years for the offence under Section 307 of the Indian Penal code, and R.I. for three years for the offence under Section 27 of the Arms Act, and all the sentences were directed to run concurrently. It may be stated that along with the appellant, his two brothers and father, namely, Ashif @ Sohrab Mirja, Ashique Mirja and Rustam Mirja had also faced the trial, and they have been acquitted of the charges.
3. The prosecution case was instituted on the basis of the fardbeyan of the informant Sahabuddin, son of the deceased Sahmood Mirja, recorded on 21.10.1994, at Sadar Hospital, Giridih, wherein, he has stated that on the same day at about 8.00 AM, he was along with his father and uncle Mahboob Mirja at Tinmuhani, in the Muhalla Bisunpur, at the shop of Cr. Appeal (DB) No.75 of 1996(R) -2- biscuits and breads. In the meantime, the accused Rustam Mirja along with his sons Faiz Mirja, Ashique Mirja, Ashif Mirja @ Sohrab, came there, whereupon, his uncle Imtiyaz asked Rustam Mirja to show the documents of land to the Sadar of Anjuman. It is alleged that thereupon Faiz Mirja started abusing them in filthy languages and stated that the dispute will be resolved after committing murder of one person and he fired pistol upon Imtiyaz, but Imtiyaz saved himself. Faiz Mirja fired another shot on the father of the informant, which also missed and thereafter, he fired third shot, which hit the father of the informant on his chest and he fell down. While the informant was trying to lift his father, Sohrab assaulted him by stone, which hit on his leg. In the meantime, several persons assembled there and the accused persons went upon the roof of the house of one Mumtaz Master and started pelting stones from the roof. In the meantime, Faiz Mirja managed to flee away. His father was brought to hospital, where the Doctor declared him dead. The informant has stated that the accused persons had encroached upon his land about 15 days ago, due to which, there was dispute between them. On the basis of the fardbeyan of the informant, Giridih Town P.S. Case No. 207 of 1994, corresponding to G.R. No.1779 of 1994, was instituted against the four named accused persons for the offences under Section 147, 148, 302 and 323 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case.
4. After commitment of the case to the Court of Session, the charge was framed against the appellant Faiz Mirja for the offences under Sections 302 and 307 of the Indian Penal Code and Section 27 of the Arms Act. As against Ashif @ Sohrab Mirja, charge was framed for the offence under Section 323 of the Indian Penal Code, and against all the four accused persons, charges were framed for the offences under Sections 302 / 34 and 336 of the Indian Penal Code. Upon the accused person's pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 18 witnesses have been examined by the prosecution, including the I.O. and the Doctor, who had conducted the post mortem examination on the dead body of the deceased.
5. PW-15 Sahabuddin is the informant of the case and the son of the deceased. This witness has stated that the occurrence had taken place on Cr. Appeal (DB) No.75 of 1996(R) -3- 21.10.1994 at about 8.00 AM. He was at Tinmuhani bridge in Bishnupur Muhalla along with his father and uncles Mahmood, Imtiyaz and Abul Hassan. There was a land dispute with Rustam, which was to be resolved by the Anjuman, for which, his father and uncle had given application before the Anjuman. The occurrence took place on the date on which the decision was to be taken up by the Anjuman. Rustam, Faiz, Sohrab and Ashique also came near the house of Mumtaz Master. Imtiyaz told them to show the document at Anjuman, whereupon, Faiz started abusing them in filthy languages and stated that one person would be murdered and then the dispute would be resolved. This witness has stated that Rustam gave orders, whereupon, Faiz took out revolver from his waist and fired upon Imtiyaz, but Imtiyaz saved himself. Thereafter, Faiz fired another shot upon his father, which also missed and then he fired third shot, which hit his father on his chest, causing bleeding injury, due to which, his father fell down. When this witness was trying to lift his father, Sohrab assaulted him by stone hitting his left leg. Thereafter, all the accused persons went on the roof of the house of Mumtaz Master and started pelting stones from there. Several persons assembled at the place of occurrence and his father was brought to the hospital, where, he was declared dead. This witness has also stated that his injured leg was also treated by the Doctor. Police had arrived at Hospital, where he gave his fardbeyan and he has identified his signature on the fardbeyan, which was marked Ext. 1/3. He has also proved his signature on the inquest report of the dead body, which was marked Ext. 1/4. He has identified the accused persons in the Court. This witness was cross-examined, in which, he has stated that in the fardbeyan, if the police had recorded that at the time of occurrence, he and his father were in the shop of biscuits and breads, then this fact was wrongly recorded. He has stated that only five persons belonging to his family were present at the place of occurrence and his father had given the application at the Anjuman about ten to fifteen days prior to the occurrence, upon which, the meeting of Anjuman was also held. He has stated that in the meeting, it was decided that both the parties would bring documents on 21.10.1994. This witness has also stated that his father had brought the documents of land for showing it to Anjuman and when his father fell down, the document was taken by his uncle Imtiyaz, which was handed over to the police. He Cr. Appeal (DB) No.75 of 1996(R) -4- has also stated that he had given the statement before the police that Rustam had given orders for opening the fire. He has also stated that when people tried to apprehend Faiz, he did not make any firing. His father was brought to hospital on a Tanga. This witness has denied the knowledge that Ashif, Ashique, Atiman and Sobra were also there in the hospital and he has stated that he had not seen them in the hospital being treated for their injuries. This witness has also stated that Rustam claimed the land stating that it was given to his sister Atiman in gift. He has denied the suggestion that the informant's side had assaulted and injured Ashif, Ashique, Atiman and Sobra and his father was also injured in the firing made by them. He has also denied the suggestion to have given false evidence.
6. PW-13 is Imtiyaz Mirja, who has also supported the prosecution case. He has stated that the occurrence had taken place on 21.10.1994. He was at Tinmuhani along with Mahboob, Sahmood, Abu Hassan, Sahabuddin, and they had to show the documents relating to land at Anjuman. There was a land dispute with Rustam Mirza. Rustam, Sohrab, Ashique and Faiz also came there, whereupon, he asked them to show the document to Anjuman, whereupon Rustam said that the dispute would not be resolved like that and he ordered to open fire. He also fired one shot, but this witness saved himself. He fired another shot upon Sahmood, which also missed and he fired third shot, which hit Sahmood on his chest, due to which Sahmood fail down. Shots were fired by a revolver. Sahmood sustained bleeding injury. He was brought to hospital, where he was declared dead. Thereafter, all the four accused persons went upon the roof of Mumtaz Master and started pelting stones. He had identified the accused in the Court. In his cross-examination, this witness has stated that his statement was recorded by the police after one month, when he was in Hazat. He was knowing of fact that the police was investigating the murder case, but he did not go to the police to give his statement. He has stated that he was falsely implicated in the case by Rustam, in which, he was taken into custody and then police had recorded his statement. This witness has again stated that Faiz Mirja had fired revolver upon him from a distance of about 20 feet, whereupon, this witness fled away. He did not see Faiz Mirza firing the second shot as he was fleeing away, but he saw the third shot, which was fired by the accused upon Sahmood from a distance of about six feet. This Cr. Appeal (DB) No.75 of 1996(R) -5- witness has also denied the knowledge that when the deceased was brought to hospital, Atiman, Sobra, Ashif and Ashique were undergoing treatment in the hospital. This witness has denied the suggestion that the informant's side had initiated the quarrel and they had assaulted and injured the defence side with sharp cutting weapon, and he has also denied the suggestion that during quarrel, someone from his side, fired the pistol, which hit the deceased. He has also denied the suggestion of giving the false evidence.
7. PW-14 is Faqruddin Mirza, Who has also supported the prosecution case as stated by the informant stating that when Imtiyaz demanded the document from Rustam for showing it to Anjuman, Faiz Mirja said that one person would be murdered and then the dispute would be resolved and he fired one shot upon Imtiyaz. Imtiyaz saved himself. He fired another shot upon Sahmood, which also missed and then he fired third shot hitting the chest of Sahmood, due to which, Sahmood suffered bleeding injury and he fell down and died. The shots were made by revolver. Thereafter, Sohrab assaulted Sahabuddin by stone on his leg and all the accused persons went to the roof of Mumtaz Master and started pelting stones from there. Sahmood was brought to hospital, where he was declared dead. He has also identified the accused persons in the Court. In his cross-examination, this witness has also admitted that he has a shop near the place of occurrence. His attention was drawn towards his statement before the police, in which he has denied the suggestion that he had not given the statement to the police that Imtiyaz demanded the document from Rustam for showing it to Anjuman, whereupon Faiz Mirja said that one person would be murdered and then the dispute would be resolved and he fired one shot upon Imtiyaz, Imtiyaz saved himself, then he fired another shot upon Sahmood, which was also missed. No suggestion, however, was given to him about his testimony about the third fatal shot upon the deceased, which shows that he was the eye witness to the occurrence. He has also stated that the occurrence was witnessed by other persons also apart from the family members. This witness has also denied the knowledge that Sobra, Atiman, Ashif and Ashique were being treated in the hospital on the same day. He also admitted that he is an accused in the counter case for the offence under Section 307 of the Indian Penal Code. He has also denied the suggestion of giving false evidence.
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8. PW-1 Amida, PW-2 Illahi Mirza, PW-7 Abul Hassan and PW-8 Mahbood Mirza have also supported the case as eyewitnesses to the occurrence, but from their cross-examinations on the statements given by them before the police and the contradictions taken from the I.O., it is apparent that they are not the eyewitnesses to the occurrence, rather they had made improvements over their statements before the police. As such, their evidences are not being discussed in detail. Suffice would be to point out that PW-7 Abul Hassan and PW-8 Maboob Mirza, have also stated that PW-7 Abul Hassan was also assaulted by Ashif by lathi, causing fracture in his hand.
9. PW-3 Samsul Haque, PW-4 Babua @ Moiuddin, PW-5 Md.
Shamim, PW-6 Zakir Mirza, PW-9 Basir Mirza and PW-11 Nisar Ahmad are hearsay witnesses and they had reached the place of occurrence upon hearing the noise and had also seen the dead body of the deceased. They were informed about the occurrence at the place of occurrence. PW-10 Samir Mirja is also a hearsay witness to the occurrence, but by the time, he reached the place of occurrence, the deceased had already been taken to hospital and he had seen the blood at the place of occurrence. PW-9 Basir Mirza is also the witness to the inquest report of the dead body, on which, he has proved his signature, which was marked Ext.-1. He has stated that he had not seen any injury on Ashique and Asif, and had not seen them in the hospital. PW-10 Samir Mirja and PW-11 Nisar Ahmed are the witnesses to the seizure of the blood stained soil from the place of occurrence, and they have proved their signatures on the seizure list, which were marked Exts.-1/1 and 1/2 respectively. PW-12 Jaimun Nisa is the wife of the deceased and she is also only a hearsay witness, who was informed about the occurrence. From her cross-examination, it is apparent that she had seen the dead body after the post mortem examination at the time of cremation. In his cross-examination, PW-4 Babua @ Moiuddin has admitted that there was counter case for the occurrence of the same date, time and place, in which, they are accused. He has also admitted that he had absconded and his statement was recorded by the police only when he surrendered in the Court and he was in Hazat after about one month of the occurrence. Similarly, PW-5 Md. Shamim, PW-6 Zakir Mirja and PW-10 Samir Mirja have also admitted in their cross-examinations that their Cr. Appeal (DB) No.75 of 1996(R) -7- statements were also recorded after one month of the occurrence, when they were in Hazat in connection with the counter case.
10. PW-17 Dr. Bhupendra Prasad Singh had conducted the post mortem examination on the dead body of the deceased on 21.10.1994 and had found the following injuries:-
Injury (a) Aperture over front of chest involving body of sternum \ of about 1/4" diameter and chest cavity deep associated with hole over sternum edges of the wounds were inverted and bruised. The skin surrounding the wound was black scorched and tattooed to some extent (wound of entry).
On dissection:-
(a) Sub-cutaneous tissue in neck - NAD
(b) Larynx and trachea - NAD
(c) Hyoid bone intact, sternum fractured.
(d) Heart raptured showing a hole anteriorly.
(e) Lungs - NAD, chest cavity contained blood clot. Liver, spleen, and kidney - NAD. Stomach contained semi digested stuff.
Mucous membrane - NAD No peculiar smell. Urinary bladder contained urine full. Skull - NAD, Brain - NAD He has stated that bullet lodged in the chest cavity was removed and sealed in an empty vial and handed over to constable. He has also stated that the injuries were ante mortem in nature and caused by firearm, and cause of death was shock and hemorrhage as a result of chest injury. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.-4.
11. PW-18 Satanjiv Jha is the I.O. of the case. This witness has stated that on 21.10.1994, he was posted at Giridih Town Police Station. There was a telephonic information that at Bisunpur, there was a quarrel between the two parties, whereupon, this witness proceeded towards the place of occurrence. He saw blood at the place of occurrence and seized the blood stained soil and prepared seizure list. He was informed that the injured was taken to hospital, whereupon he reached Sadar Hospital, at about 10.30 AM, where he recorded the fardbeyan of the informant Sahabuddin, the son of the deceased, on the basis of which, the FIR was instituted and the charge of investigation was handed over to him. He also prepared the inquest report of the dead body and after completing the investigation, he submitted the charge-sheet. He has proved the fardbeyan, the formal FIR, the inquest report and seizure list of seized blood stained soil, which were marked Cr. Appeal (DB) No.75 of 1996(R) -8- Exts.-5, 6, 7 and 8 respectively. In his cross-examination, this witness has stated that on the same day, Giridih Town P.S. Case No.208 of 1994 was also instituted and he was the investigating officer in the said case also. He has proved the fardbeyan in Giridih Town P.S. Case No. 208 of 1994, which was marked Ext.-A. He has also proved the formal FIR of the said case, which was marked Ext.-B. This witness has also stated that in P.S. Case No. 207 of 1994 (i.e., the present case), when he went to the hospital, he found the accused, Ashique Mirza, Ashif Mirza @ Sohrab, Bibi Hazra and Bibi Atiman in injured condition, undergoing treatment. They were not in a position to give their statements at that point of time and as such, their statements were recorded later. He has proved the memos for issuing injuries report of these four persons of the defence side, which were marked Ext.-C Series and he has also proved the injury reports of these persons issued by the Doctor, which were marked Ext.-D Series. He has stated that in the counter case, he submitted the charge-sheet against Imtiyaz, Zakir, Abul Hassan, Mahboob, Shamid, Shamim, Munna @ Bashir, Babua @ Moiuddin and Faqruddin, for the offences under Section 307 and other offences under the Indian Penal Code. This witness has also stated that the place of occurrence of P.S. Case of 207 of 1994 and P.S. Case No.208 of 1994 is the same. He also searched the house of the accused persons in the present case, but did not find any incriminating article. He had not sent the bullet for forensic examination. His attention was drawn towards the statements of the witnesses, including the eyewitnesses, and he proved the necessary contradictions, which show that PW-1 Amida, PW-2 Illahi Mirja, PW-7 Abul Hassan and PW-8 Mahboob Mirja, who have claimed to be the eyewitnesses before the Court, but actually they were not the eyewitnesses to the occurrence, rather they had made improvements over their earlier versions, in the Court. He has also stated that Sahabuddin or his uncle Imtiyaz had not handed over any document regarding the land to him. He has also stated that he had recorded the statements of the witnesses Imtiyaz, Zakir, Mahboob Mirja, Abu Hassan, Moiuddin @ Babua, Samir Mirja, Shamim Mirja, on 21.11.1994, i.e. after one month of the occurrence, while they were in Hazat. He has stated that all the eyewitnesses of the occurrence were absconding.
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12. PW-19 is Ram Naresh Singh, who is the Police Officer, who had produced the pellet and the blood stained cloths in the Court, which were marked material Exts.-I and II respectively.
13. PW-16 Kameshwar Prasad is a formal witness, who has only proved one rent receipt, which was marked Ext.-2.
14. The statements of the accused persons were recorded under Section 313 of the Cr.P.C, wherein the accused persons denied the evidence against them. One defence witness was also examined by the defence, who is DW-1, Dr. Ganesh Chandra Sinha, who had examined the injuries of Ashique, Md. Ashif, Atiman Khatoon, Hazra Khatoon, which he has proved, which were already marked Ext.-D Series. He has stated that the injuries on Ashif and Ashique were dangerous to life.
15. On the basis of the evidence on record, out of four accused persons, who were facing the trial, only the appellant Faiz Mirja has been convicted and sentenced for the offences as aforesaid, and his father and brothers, who were also facing the trial along with him, have been acquitted of the charges.
16. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, on the basis of the same evidence, other accused persons, who are father and brothers of the appellant, have been acquitted of the charges, whereas the appellant has been convicted for the offences, in view of the fact that this appellant is alleged to have assaulted the deceased by firearm. It is submitted by the learned counsel that the evidence was against the other accused persons also, that they were accompanying this accused, and the deceased was assaulted upon the order given by the father of the appellant, and in view of the fact that the other appellants have been acquitted by the Trial Court finding them not guilty, the appellant also deserved the same benefit. Learned counsel has submitted that admittedly, there is land dispute between the parties and there is case and counter case between them. Learned counsel has pointed out that though the prosecution witnesses have denied the knowledge that the persons of the defence side were undergoing treatment in the same hospital, where the deceased was brought, but the I.O. has clearly stated that when he went to the hospital, he found Ashique, Sobra, Cr. Appeal (DB) No.75 of 1996(R)
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Bibi Hazra and Bibi Atiman were undergoing treatment and they were not in a position to give their statements at that time. This clearly shows that the prosecution witnesses were concealing the injuries on these persons, though they have admitted that they are the accused in the counter case. Some of the witnesses have also admitted, and also corroborated by the evidence of PW-18 Satanjiv Jha, the I.O., that they were absconding after the occurrence and their submissions could be recorded only after one month of the occurrence when they were in custody. Learned counsel further pointed out that PW-7 Abul Hassan and PW-8 Maboob Mirza, who had deposed in the Court as eyewitness to the occurrence, have also stated that PW-7 Abul Hassan was also assaulted and injured in the occurrence causing fracture in his hand. However, there is no such allegation either in the FIR, nor any Doctor has been examined by the prosecution to prove any such injury on PW-7 Abul Hassan. It is further submitted that even though, the eyewitness including PW-15 Sahabuddin has stated that he was assaulted by Sohrab by stone causing injury on his leg and he was also treated for the same, but this injury has also not been proved by the prosecution. Learned counsel submitted that it is thus apparent that the prosecution has not come out with the clean hands and it has not been able to bring home the charge against the accused appellant beyond all reasonable doubts, and in that view of the matter, it is a fit case, in which, the present appellant also ought to have been acquitted of the charge.
17. Learned counsel for the State as also learned counsel for the informant on the other hand have opposed the prayer. It is submitted by learned counsels that the prosecution case has been proved beyond all reasonable doubts by the eyewitness, particularly, PW-1 Amida, PW-2 Illahi Mirja, PW-7 Abul Hassan, PW-8 Mahboob Mirza, PW-13 Imtiyaz Mirja, PW-14 Fakruddin Mirza and PW-15 Sahabuddin, the informant of the case, as also the hearsay witnesses, who were informed about the occurrence. Their ocular evidence is fully corroborated by the medical evidence of PW-17 Dr. Bhupendra Prasad Singh and the post-mortem report proved by him as Ext.-4, which shows that the deceased had suffered fire arm injury on his chest, which was the cause of his death. Learned counsels accordingly, submitted that the prosecution has been able to bring home charges against the accused beyond all reasonable doubts and Cr. Appeal (DB) No.75 of 1996(R)
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simply because there are some contradictions here and there in the evidences of witnesses, or it is argued by learned counsel for the appellant that the injuries on the defence side have been concealed by the prosecution witnesses, the entire evidence of the witnesses cannot be thrown away.
18. In this connection, learned counsel has place reliance upon the decision of the Hon'ble Supreme Court of India in Ugar Ahir & Ors. Vs. State of Bihar, reported in AIR 1965 SC 277, wherein, it has been held that the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law, nor a rule of practice. Learned counsel further place reliance upon the decision of the Supreme Court of India in State of U.P. Vs. Noorie (Smt.) @ Noor Jahan & Ors., reported in (1996) 9 SCC 104, wherein, it is held that while assessing and evaluating the evidence of eyewitnesses, the Court must adhere to two principles, namely whether in the circumstances of the case it was possible for the eye witness to be present at the scene and whether there is anything inherently improbable or unreliable. Learned counsel lastly placed reliance upon the decision of the Hon'ble Supreme Court of India in The State of Punjab Vs. Jagir Singh & Others, reported in (1974) 3 SCC 277, wherein, it is held as follows:-
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures." (Emphasis supplied).
Placing reliance on these decisions, it is submitted by learned counsels that the witnesses have fully supported the prosecution case, their presence at the place of occurrence cannot be doubted, and in view of the fact that all the eyewitnesses have stated that it is this appellant, who had assaulted the deceased by firearm causing his death at the spot, there is no occasion to Cr. Appeal (DB) No.75 of 1996(R)
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disbelieve this testimony, and as such, there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below.
19. Having heard learned counsels for both the sides and upon going through the record, we find that there is admitted enmity between both the sides for the land dispute and there is case and counter case between them, and the place of occurrence of both the cases is same, as deposed by PW-18 Satanjiv Jha, the I.O. of the case. The I.O. has also stated that when he visited the hospital, he had seen the accused Ashif @ Sohrab Mirja and Ashique Mirja in the injured condition undergoing treatment in the hospital along with two other female members of their side and they were not in a position to give their statements at that time. Accordingly, the fardbeyan in the counter case was recorded later and the counter case was instituted after the present case. The I.O. in the present case and DW-1 Dr. Ganesh Chandra Sinha have also proved the injury reports of those injureds, and it has come in the evidence of DW-1 that the injuries on both Ashif @ Sohrab Mirja and Ashique Mirja were dangerous to their life. The injuries on these accused persons is fully concealed by the prosecution witnesses examined in this case, and they have flatly stated that they had no knowledge that they were undergoing treatment for their injuries. The fact remains that PW-18 Satanjiv Jha, the I.O. of the case, has deposed that the place of occurrence in both the cases is the same, and even PW-4 Babua @ Moiuddin has also admitted that date, time and place of occurrence in both the cases are the same. As such, the presence of these two accused persons, who were also injured, in the counter case, cannot be disbelieved. Thus it is apparent that these two accused persons as also the two ladies from their side were injured in the presence of the prosecution witnesses, but they are deliberately concealing this fact. Indeed, most of the witnesses in the case have admitted that they were absconding at the time of occurrence and their statements were recorded by the police after one month, only when they were taken into custody in connection with the counter case. The prosecution witnesses in the present case have made improvements over their statements made before the police, in as much as, PW-1 Amida, PW-2 Illahi Mirja, PW-7 Abul Hassan and PW-8 Mahboob Mirja, who were not the eyewitnesses to the occurrence, have deposed in the Court as Cr. Appeal (DB) No.75 of 1996(R)
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eyewitnesses to the occurrence. PW-7 Abul Hassan has stated that he was also assaulted and injured and his hand was fractured in the occurrence. This fact is also supported by PW-8 Mahboob Mirja, but this fact is neither stated in the FIR, nor this fact is stated by the other witnesses examined in the case, including PW-15 Sahabuddin, the informant of the case. Indeed even PW-15 Sahabuddin has also stated that he was also injured in the occurrence and his injury was also treated by the Doctor, but the injuries of none of these witnesses have been proved by the prosecution, whereas, the defence has proved the injuries on two injured accused and two ladies in their side, by the cogent evidence of PW-18 Satanjiv Jha, the I.O. of the case, who had seen them admitted in the hospital, and also of DW-1 Dr. Ganesh Chandra Sinha, who had examined their injuries. The evidence of yet another eyewitness PW-13 is Imtiyaz Mirja, is quite contrary to the prosecution case. He has attributed every allegation against the accused Rustam Mirja, saying that it was Rustam who said that the dispute would not be resolved like that and he ordered to open the fire, and it was Rustam who made the firings upon him and the deceased. However, only in his cross-examination he stated that firings were made by Faiz. These facts clearly show that it is not only that the prosecution has not come out with clean hands by giving the true manner of occurrence, rather the eye witness account about the occurrence is also quite contrary. There is ample scope of doubts in the versions of the prosecution witnesses, the benefits of which must go to the accused. This apart, the fact that the witnesses have tried to make improvements in the case is also apparent from the fact that the informant PW-15 Sahabuddin has stated in his cross-examination that at the time of occurrence, his father had brought the document relating to the land for showing it to the Sadar of Anjuman and when he fell down after getting the bullet injury, his uncle Imtiyaz took that document and said document was handed over to the police, but the I.O. PW-18 Satanjiv Jha has clearly stated in his evidence that no such document was ever given to him, either by the informant Sahabuddin or his uncle Imtiyaz. The I.O has also admitted in his cross-examination that he had searched the house of the accused persons and no incriminating article was found by him. As such, it is apparent that there is no recovery of the firearm in the case.
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20. In the facts of this case, we are of the considered view that the prosecution has not been able to bring home charges against the accused appellant beyond all reasonable doubts and in the facts of this case, even though, the eyewitnesses have attributed the assault upon the deceased, directly against this accused, he was entitled at least to the benefits of doubts. As such, the impugned Judgment of conviction and order of sentence cannot be sustained in the eyes of law.
21. For the foregoing discussions, the impugned Judgment of conviction and Order of sentence dated 27.04.1996, passed by the learned 1st Additional Sessions Judge, Giridih, in S.T. No.88 of 1995, convicting and sentencing the appellant Faiz Mirja for the offences under Sections 302 and 307 of the Indian Penal Code and Section 27 of the Arms Act, are hereby, set-aside. The appellant Faiz Mirja is given the benefits of doubt and he is acquitted of the charges. The Appellant is on bail, and he is discharged from the liabilities of his bail bond.
22. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) B.B. Mangalmurti, J.:-
(B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated : 13/06/2018 R. Kumar/NAFR