Patna High Court
Anwar Sah @ Anwar Ali vs State Of Bihar on 31 January, 2012
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.527 of 1999
(Against judgment of conviction dated
12.10.1999and order of sentence dated 14.10.1999 passed by Sri Ajay Kumar Srivastava, learned 6th Additional Sessions Judge, Siwan in Sessions Trial No. 158 of 1998 (Goria Khoti P. S. Case No. 80 of 1997) ===========================================================
1. Akhtar Sah @ Akhtar Hussain
2. Hasamuddin Sah @ Hasamuddin Sah Both sons of Late Mokhtar Sah, resident of village- Bindwal Takia, P.S.- Goria Kothi, District- Siwan.
.... .... Appellant/s Versus The State Of Bihar .... .... Respondent with Criminal Appeal (DB) No. 531 of 1999 =========================================================== Anwar Sah @ Anwar Ali, son of Azim Sah, resident of village- Bindwal Takia, P.S.- Goria Kothi, District- Siwan.
.... .... Appellant Versus The State Of Bihar .... .... Respondent =========================================================== Appearance :
(In CR. APP (DB) No. 527 of 1999) For the Appellant/s : Mr. Sadaqual Hussain, Sr. Adv.
Mr. Chandra Mauli Pd Singh, Adv.
For the Respondent/s : Mr. Shashi Bala Verma, APP (In CR. APP (DB) No. 531 of 1999) For the Appellant/s : Mr. For the Respondent/s : Mr. S. C. Mishra, APP
=========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT Date: 31-01-2012 (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Cr. Appeal (DB) No. 527 of 1999 filed on behalf of Akhtar Sah @ Akhtar Hussain and Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 2 Hasamuddin Sah @ Hasamuddin Sah and Cr. Appeal (DB) No.531 of 1999 filed on behalf of Anwar Sah @ Anwar Ali have been heard together because both the appeals have arisen out of a common judgment of conviction dated 12.10.1999 and order of sentence dated 14.10.1999 passed by the learned 6th Additional Sessions Judge, Siwan in Sessions Trial No. 158 of 1998 (Goria Khoti P. S. Case No. 80 of 1997) convicting the appellants Anwar Sah, Akhtar Sah @ Akhtar Hussain and Hasamuddin Sah under Section 302 /34 I.P.C. and sentencing them to undergo imprisonment for life.
2. Just before noon on 23.9.1997 at 11.30 a.m. an occurrence has led to killing of Md. Arshad Sah. The occurrence was reported to the police through Fard Beyan (Ext. 3) of Akaramullah Sah (P.W. 6) which led to registration of Formal FIR (Ext. 5). Fard beyan of P. W. 6 was recorded at Goria Kothi hospital at 12.30 noon. It was alleged that at preceding 11.30 a.m. the informant was sitting on the Darwaja of Makbool Sah (not examined) along with others. The house was situated at a distance of 25-30 yards from the Mosque. Informant's father Abdullah Sah (P.W. 4) was sitting inside of the Mosuqe. Others were also there. Informant's Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 3 younger brother Md. Arshad Sah (deceased) aged about 22 years was just outside the Mosque and at that time he was sleeping on a Cot. At that very time, Anwar Sah aged about 50 years, Akhtar Sah aged about 50 years and Hasamuddin Sah aged about 45 years came near Arshad Sah. Akhtar Sah caught the informant's brother Arshad and Anwar Sah attacked him through Garasi (a sharp cutting instrument). Attack was repeated causing injury on left side temporal region, ear and chin of Arshad. Arshad cried that he had been assaulted by Anwar Sah, Akhtar Sah and Hasamuddin. After seeing this, informant and others went near Arshad. Arshad was brought to Goria Kothi hospital for treatment where he succumbed to the injuries. The occurrence was witnessed by Md. Naem (P.W. 7), Gafar Sah (not examined), Razi Ahmad (P.W. 1) and others. The occurrence was in retaliation of a litigation with regard to the land.
3. After registration of the case, the investigation was taken up by P. W. 8 Lalmohar Singh. Inquest report (Ext. 4) of the deceased was prepared. Post-mortem report (Ext. 2) was obtained. Anwar Sah was apprehended and on his confessional statement Garasi carrying blood Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 4 stained marks (Material Ext. 1) was seized. After investigation charge-sheet was submitted. Cognizance was taken and the case was committed to the Court of Sessions where charges under Section 302/34 I.P.C. were explained to the accused persons to which they pleaded innocence and preferred to face the trial.
4. The defence of the appellant was of false implication on account of enmity from before which has been mentioned in the fard beyan itself. Their further defence was that in fact Md. Arshad was killed by stranger and as accused persons were having enmity so they were framed.
5. In order to prove its case the prosecution has examined altogether eight witnesses. They are P. W. 1 Razi Ahmad, P. W. 2 Ejaharuddin, P. W. 3 Md. Samiullah, P. W. 4 Abdula Sah, P. W. 5 Dr. Suresh Prasad Sah, P. W. 6 Akramulla Sah, P. W. 7 Md. Naem, and P. W. 8 Lalmohar Singh.
6. P. W. 5 has conducted the post mortem examination on the body of the deceased and P. W. 8 has registered the FIR and investigated the case. P. W. 1, P. W. 4 and P. W. 7 are named witnesses of the FIR. P. W. 6 is the informant.
7. Before proceeding to discuss the Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 5 evidence it could be appropriate to see the medical evidence of P. W. 5. Post-mortem on the dead body of Arshad sah aged about 22 years was performed on 23.9.1997 by P. W. 5 at 5 P.M. and the doctor has found the following ante-mortem injuries:-
(i) Incised wound on front of
neck 3" X 1" X muscle deep
with trachea cut.
(ii) Incised wound on olix of the
left ear 1" X ¼" cartilodgo
cut.
(iii) Incised would below the left
ear 1"X 1/2" skin deep.
On dissection heart was found empty,
lungs were congested. Time elapsed since death was within 12 hours. The death is not under challenge. It has been established that Md. Arshad Sah met with a violent death and he died due to sharp cutting injury which he had received. The prosecution case shows the death of the deceased by sharp cutting instrument on the time suggested at 11.30 a.m. on 23.9.1997. Once the factum of death is established then the oral evidence has to be considered.
8. P. W. 6 is the informant. He has Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 6 described that at 11.30 a.m. on 23.9.1997 he was sitting on the Darwaja of Maqbul Sah along with Guddu, Suddu and Alamgir. 25-30 yards away from that place the informant's father Abdulla Sah and others were sitting inside the mosque. Informant's brother Arshad Sah (deceased) was sleeping outside the mosque. At that very moment, Anwar Sah having Garasa along with Akhtar and Hasamuddin came near Arshad. Akhtar caught hold of Arshad and Anwar gave repeated Garasa blows to Arshad causing injuries on his left temporal region, left ear and chin. Arshad escaped saying that he had been assaulted by Akhtar, Anwar and Hasamuddin. Informant and others rushed to rescue Arshad and thereafter Arshad while being carried to Goria Kothi hospital succumbed to the injuries caused to him. After committing the offence accused persons fled towards South. In presence of this witness, inquest upon the dead body was prepared. This witness has shown the Officer-in-Charge the place of occurrence. He has denied the suggestion given by the defence that Arshad never ventured inside the mosque campus. The evidence of this witness is more or less consistent.
9. P. W. 1 has not supported the Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 7 prosecution case and he has been declared hostile by the prosecution. P. W. 2 and P. W. 3 were not declared hostile by the prosecution but they have not supported the prosecution case.
10. P. W. 4 is the father of the deceased and he has supported the evidence of the informant and stated that when he came out from Mosque after hearing cry of Ekaramullah, in the meanwhile Arshad came running inside the Mosque and stated that he has been cut by Anwar, Akhtar and Hsamuddin. The deceased was taken to Goria Kothi hospital but in the way he died. This witness has further stated that he had seen Anwar escaping having Garasa and at that time he was accompanied by Akhtar and Hasamuddin but they were not attributed any arm.
11. P. W. 7 is the named witness of the Fard beyan and he has stated that Anwar came with garasa and attacked Arshad causing injuries upon his person. Arshad reached inside the campus of Mosque and fell down near east of a tree. This witness in para 4 of his examination-in-chief has stated that except Arshad he has not seen any accused escaping. This witness is FIR named witness and has described the occurrence but he is specific that he has not seen Akhtar and Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 8 Hasamuddin rather he has seen only Anwar Sah. Therefore, his evidence supports only the implication of Anwar Sah.
12. P. W. 8 after recording formal FIR started the investigation and seized blood stains. Seizure list was prepared but it was not brought on record. Anwar Sah was apprehended and he confessed his guilt and stated that the used Garasa has been kept towards the east of dilapidated house of Nathuni Mian. I. O. rushed there and seized Garasa which was having blood stains. It was produced in course of evidence and had been marked as Material Ext. 1.
13. Learned counsel appearing on behalf of the appellants submits that the prosecution case is based on sole testimony of the informant whose evidence has also been truncated by the witness who has been named in the FIR itself. Attention has been drawn towards the evidence of the witnesses whose name have been mentioned in the FIR but they have not supported the prosecution case so it has been submitted that the accused persons have been falsely framed because of enmity. According to the defence, Arshad was killed by unknown persons and the prosecution has tried to encash this opportunity Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 9 in framing his enemies who are the appellants here.
14. The FIR has been recorded soon after the occurrence. The occurrence is of 23.9.1997 at 11.30 a.m. and the fard beyan was recorded within one hour of the occurrence and the informant has described the occurrence but so far assault portion is concerned that has been attributed against Anwar.
15. This is the case of the prosecution that Anwar has given Garasa blow on the head of Arshad and at that time Arshad was caught hold by Akhtar. With regard to this learned counsel for the appellants submits that when Arshad was sleeping according to the prosecution, then there was no occasion for anybody to catch him because in that position he could have been attacked. It is also submitted that the evidence of the FIR named witness P. W. 7 is emphatic that Anwar alone was responsible for causing death.
16. After analyzing the evidence it is apparent that the accused persons can be divided into two categories; on one side Anwar Sah can be classified and another classification may be of Akhtar Sah @ Akhtar Hussain and Hasamuddin Sah @ Hasamuddin Sah but there is no overtact at all Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 10 against Hasamuddin Sah and Akhtar Hussain and they have also been exonerated by none else but the witness named in the FIR itself.
17. There is some tendency to implicate more persons because of enmity but that has to be considered in view of the evidence brought on record. If the prosecution is consistent that the killing has been done in the manner as alleged then it can be said that the prosecution has established the charge against the accused. If the evidence in the present is analyzed then it is apparent that the killing was made by Anwar Sah alone and Akhtar Sah @ Akhtar Hussain and Hasamuddin Sah had nothing to do with the killing and they have been roped in because of old enmity. Therefore, the allegation against the Akhtar Sah @ Akhtar Hussain and Hasamuddin Sah cannot be said to be established beyond shadow of all reasonable doubt. So far the charge against Anwar Sah is concerned, it can be said to be proved beyond shadow of all reasonable doubts.
18. In the result, judgment of conviction and order of sentence is modified to the extent that charge against Akhtar Sah @ Akhtar Hussain and Hasamuddin Sah @ Hasamuddin Sah has not been proved beyond shadow of all Patna High Court CR. APP (DB) No.527 of 1999 dt.31-01-2012 11 reasonable doubts. Hence, the appeal filed by them i. e. Cr. Appeal (D.B.) No. 527 of 1999 is allowed. They are acquitted of the charge and are ordered to be discharged from the liabilities of their bail bonds.
19. So far Anwar Sah @ Anwar Ali is concerned, the evidence against him is cogent, consistent and complete. Therefore, the appeal filed on behalf of Anwar Sah @ Anwar Ali i.e. Cr. Appeal (D.B) No.531 of 1999 stands dismissed.
(Shyam Kishore Sharma, J.) Patna High Court, Patna Dated the 31st of January, 2012 N.A.F.R/Kanchan (Amaresh Kumar Lal, J.)