Patna High Court
Md.Rayesuddin & Ors vs State Of Bihar on 31 October, 2018
Author: Rajendra Kumar Mishra
Bench: Hemant Kumar Srivastava, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.973 of 2006
.........
{Against the Judgment of conviction dated 26.09.2006 and Order of sentence
dated 27.09.2006 passed in Sessions Trial No.189 of 2001 by the court of the
Additional Sessions Judge, Fast Track Court No.III, Araria}.
======================================================
1. Md. Rayesuddin, son of Late Abdul Quadir.
2. Md. Zakir, son of Late Abbas.
3. Md. Afaque, son of Late Md. Ishaque.
4. Md. Pasha alias Mustafa alias Md. Mustafa alias Pasha, son of Md.
Suleman.
All resident of village-Prem Nagar, Police Station-Araria, District-Araria.
... ... Appellants.
Versus
The State of Bihar
... ... Respondent.
======================================================
with
Criminal Appeal (DB) No. 966 of 2006
======================================================
Md. Wali Ahmad, son of Md. Samsddin, resident of village-Prem Nagar,
Police Station-Araria, District-Araria.
... ... Appellant.
Versus
The State of Bihar
... ... Respondent.
======================================================
with
Criminal Appeal (DB) No. 1076 of 2006
======================================================
1. Md.Niaz, son of Md. Kalim.
2. Md. Nazbool, son of Late Md. Hafiz.
3. Md. Wasique, son of Samsuddin.
4. Md. Riyaz, son of Ainul.
5. Md. Kasim, son of Late Sakir.
All are resident of village-Prem Nagar, Police Station-Araria, District-
Araria.
... ... Appellants.
Versus
The State of Bihar
... ... Respondent.
======================================================
Appearance :
(In Criminal Appeal (DB) No. 973 of 2006):
For the Appellants : Mr. Mrigank Mauli, Advocate.
Mr. Sanjay Kumar Sharma, Advocate.
Mr. Prince Kumar Mishra, Advocate.
Mr. Saket, Advocate.
Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018
2/34
Mr. Kashayap Kvashal, Advocate.
Mr. Uday Bhanu Roy, Advocate.
For the State : Mr. Satyanarain Prasad, A.P.P.
(In Criminal Appeal (DB) No. 966 of 2006):
For the Appellant : Mr. Ajay Kumar Thakur, Advocate.
Mr. Ramesh Kumar Singh, Advocate.
For the State : Mr. Shiwesh Chandra Mishra, A.P.P.
(In Criminal Appeal (DB) No. 1076 of 2006):
For the Appellants : Mr. Ajay Kumar Thakur, Advocate.
Mr. Ramesh Kumar Singh, Advocate.
For the State : Mr. Dilip Kumar Sinha, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA)
Date : 31-10-2018
The aforesaid criminal appeals have been preferred
against the Judgment of conviction dated 26.09.2006 and Order
of sentence dated 27.09.2006 passed in Sessions Trial No.189 of
2001 by the court of the Additional Sessions Judge, Fast Track
Court No.III, Araria, therefore, the aforesaid criminal appeals
have been heard together and are being disposed of by this
common Judgment.
2. By the aforesaid Judgment and Order, the
appellant Md. Wali Ahmad has been convicted under Section
302 of the Indian Penal Code and Section 27 of the Arms Act
and, accordingly, sentenced to undergo imprisonment for life for
the offence under Section 302 of the Indian Penal Code and
rigorous imprisonment for seven years for the offence under
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Section 27 of the Arms Act, whereas the remaining appellants
have been convicted under Section 302/149 of the Indian Penal
Code and, accordingly, sentenced to undergo life imprisonment
for the offence under Section 302/149 of the Indian Penal Code.
Further, the appellants Md. Afaque and Md. Pasha have been
convicted under Section 27 of the Arms Act and, accordingly,
sentenced to undergo rigorous imprisonment for seven years for
the offence under the aforesaid Section. All the appellants have
also been imposed fine of Rs.3000/- for their respective
conviction and, in default of payment of amount of fine, further
imprisonment of one year. However, all the sentences were
ordered to run concurrently.
3. In brief, the prosecution case is that Md.
Ayazuddin (P.W.9) gave his fardbeyan on 17.06.1999 at 11.30
P.M. at his door in village-Prem Nagar before A.S.I.
Umashankar Chaudhary (P.W.13) of R.S.O.P., Araria, to the
effect that while he along with his family members, after taking
the dinner at about 09.30 P.M. on 17.06.1999, was in the
process of sleeping, at that time, the appellants Md. Mustafa
alias Pasha, Md. Afaque, Md. Zakir, Md. Wali, Md. Wasique,
Md. Nazbool, Md. Riyaz, Md. Rayesuddin, Md. Kasim, Md.
Niaz and one Sk. Samsuddin alongwith 25-30 unknown having
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bhala, farsa and three-nut entered in the courtyard of his elder
brother Md. Idrish. On the point of three-nut, the appellants
Md. Afaque and Md. Pasha ordered his elder brother Idrish, who
was sitting in the courtyard, to keep silent and made query
about him (Wakil). His sister-in-law Bibi Noorsadi, seeing the
appellants and others, fled away from there and came near his
house and told that the appellants and others are searching to
him (Wakil). After hearing the statement of Bibi Noorsadi, his
mother Bibi Julekha, aged about 55 years, proceeded towards
door from the courtyard and he also proceeded behind his
mother towards door, where lantern was burning. In the light of
lantern, he saw that the appellants Md. Afaque, Md. Pasha and
Md. Wali having three-nut in their hands were proceeding
towards his door. On seeing his mother Bibi Julekha, they
asked about him (Wakil), saying that he will not be spared alive.
In the meantime, they saw him, on which the appellants Md.
Wali and Md. Afaque fired through three-nut upon him but his
mother Bibi Julekha turned back to save him and firing of Md.
Wali hit his mother, who fell down. Seeing the firing, he
concealed himself, taking the advantage of darkness.
Thereafter, the appellants Md. Wali and Md. Afaque entered into
his house and started making query about him to his wife but his
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wife did not give any reply. Thereafter, on the point of pistol,
they took the key of almirah and took the ornaments. In the
meantime, the fire was put in the grass, which was stored at the
door, by someone. Due to burning of the grass, smoke and light
spread over at the door and then all fled away from there. The
cause of occurrence is that there was dispute between him and
the appellants in respect to the allotment of the house under
Indira Awas Scheme because he got published the illegalities
committed by them in distribution of the house under Indira
Awas Scheme and he had also filed an application before the
authority regarding which enquiry was going on. Due to
sustaining firearm injury, her mother died on the spot. The
occurrence was witnessed by several persons.
4. On the basis of the aforesaid fardbeyan (Ext.A)
of the informant Md. Ayazuddin (P.W.9), Araria P.S. Case
No.278 of 1999 was instituted under Sections 147, 148, 149,
341, 323, 447, 452, 379 and 302 of the Indian penal Code and
Section 27 of the Arms Act against the 11 accused including the
appellants and 25-30 unknown.
5. After investigation, police submitted the
chargesheet against the appellants and one Sk. Samsuddin under
the aforesaid Sections. Thereafter, the cognizance of the offence
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under the aforesaid Sections was taken and the case was
committed to the court of sessions, numbered as Sessions Trial
No.189 of 2001, for trial.
6. The appellants Md. Wali Ahmad and Md.
Afaque stood charged under Section 302 of the Indian Penal
Code, whereas the other appellants stood charged under
Sections 302/149 of the Indian Penal Code. Further, the
appellants Md. Afaque, Md. Pasha and Md. Wali Ahmad stood
charged under Section 27 of the Arms Act.
7. During trial, the prosecution examined,
altogether, 13 witnesses and also got exhibited several
documents in support of its case.
On the other hand, the defence examined,
altogether, 9 witnesses in support of their defence, out of which
D.W.1 Mahendra Lal Das, Assistant Nazir, D.W.2 Mahendra
Prasad Sah, Nazir, and D.W.5 Rajendra Paswan, Driver, of
Collectorate, Araria, are on the point of alibi of appellant Md.
Rayesuddin to the effect that he being the driver in Collectorate,
Araria, was on duty till 10.00 P.M. on 17.06.1999 in Araria.
D.W.3 Saryug Ram, D.W.4 Radhe Ram, D.W.6 Md. Zuber
Alam, D.W.7 Md. Yusuf, D.W.8 Md. Soyeb Alam and D.W.9
Md. Fazid are on the point that on the date of the occurrence
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quarrel started in the day in between the informant Md.
Ayazuddin (P.W.9) and his brothers. At the time of the
occurrence, in course of quarrel, Md. Ayazuddin opened fire at
his brother Md. Abesh (P.W.7) but the same hit to Bibi Julekha,
the mother of Md. Ayazuddin, who had come in rescue. But the
informant Md. Ayazuddin due to enmity with the appellants
implicated them with false story.
8. The learned trial court on scrutinizing the
evidence, available on the record, convicted and sentenced the
appellants in the manner, as indicated above, through the
impugned Judgment of conviction and Order of sentence, while
acquitted the co-accused Sk. Samsuddin for the charge under
Sections 302/149 of the Indian Penal Code.
9. Learned counsel appearing for the appellants
argued that while P.W.1 Md. Gayas, P.W.4 Md. Idris, P.W.5 Bibi
Noor Sadi, P.W.6 Nargis Bano and P.W.7 Md. Abesh Alam have
claimed to be the eye witnesses of the occurrence but their
evidence shows that they reached at the place of the occurrence
after the occurrence but the learned trial court did not consider
their evidence in right perspective. He further argued that, in
fact, quarrel started in between the informant Md. Ayazuddin
(P.W.9) and his brother since the evening of the date of the
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occurrence, which continued till late night and, in that course,
the informant Md. Ayazuddin (P.W.9) opened fire at his brother
but the same hit at her mother, who had come in rescue. P.W.2
Md. Islamuddin and P.W.5 Nargis Bano have also stated in their
evidence that when they reached at the place of the occurrence,
then saw that Bibi Julekha, the mother of the informant, was
lying on the ground, sustaining firearm injury and she disclosed
that she was shot fire by her son (Wakil) and also told to take
her to the hospital but the learned trial court illegally disbelieved
the evidence of P.W.2 and P.W.5.
On the other hand, learned Additional Public
Prosecutor appearing for the State argued that from the evidence
of P.W.1 Md. Gayas, P.W.3 Md. Yakub Alam, P.W.4 Md. Idris,
P.W.6 Nargis Bano, P.W.7 Md. Abesh Alam and P.W.9 Md.
Ayazuddin, it is apparent that all the appellants forming an
unlawful assembly reached in the courtyard of P.W.4, searching
the informant Md. Ayazuddin (Wakil) and from there, they
proceeded towards the house of the informant and on seeing the
informant, Md. Wali opened fire but the same hit at the mother
of the informant, who was in front of the informant. Dr. Arun
Kumar Choudhary (P.W.11), who conducted the post-mortem
examination over the dead body of the deceased Bibi Julekha,
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also found one firearm injury on her dead body and according to
him, the cause of death of the deceased was due to said firearm
injury, as such, there is no infirmity and illegality in the
impugned Judgment of conviction and order of sentence.
10. I have gone through the evidence, available
on the record, to appreciate the arguments, as advanced on
behalf of both sides.
11. Out of the 13 prosecution witnesses, P.W.1,
Md. Gayas, P.W.2 Md. Islamuddin, P.W.4 Md. Idris, P.W.5 Bibi
Noor Sadi, P.W.6 Nargis Bano, P.W.7 Md. Abesh Alam and
P.W.9 Md. Ayazuddin (informant) have claimed to be the eye
witnesses to the occurrence. P.W.3 Md. Yakub Alam has been
declared hostile. P.W.8 Abdul Sakoor, husband of the deceased,
was not present at the time of the occurrence. When he came to
the house, then he came to know about the occurrence from his
sons. P.W.10 Abdul Samad is the witness of the inquest report
(Ext.4) and he has proved his signature on the inquest report as
Ext.5 and also the signature of Md. Saiyed as Ext.5/1. P.W.12
Md. Yakub is the witness of seizure list of blood stained soil and
he proved his signature on the seizure list as Ext.7. P.W.11 Dr.
Arun Kumar Choudhary is doctor, who held the post-mortem
examination over the dead body of the deceased. P.W.13
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Umashankar Choudhary is the Investigating Officer of the case.
12. P.W.11 Dr. Arun Kumar Choudhary has
stated in his evidence that on 18.06.1999, he was posted at
Sadar Hospital as C.A.S. (Civil Assistant Surgeon). On that
date, he conducted the autopsy over the dead body of Bibi
Julekha, wife of Abdul Saqoor, resident of Prem Nagar, P.S.
Araria R.S., District-Araria, and found the following ante
mortem injuries:
Injury No.1:- 1/2" x 1/2" in diameter with
tattooing margin wound on right side of front of chest wall
(entry wound).
Injury No.2:- 1" x 1" in diameter with charred
margin wound on back of right side of chest wall (exit wound).
Injury No.3:- Fracture fifth rib anteriorly and
fracture seventh rib back of chest wall.
Whole Thoracic cavity was full of blood.
Injury No.4:- Left lungs ruptured with pleura.
According to this witness, the cause of death was
haemorrhage and shock as a result of firearm injury such as
three-nut and he proved the post-mortem report as Ext.6.
From the evidence of this witness, it is clear that
the cause of death of the deceased Bibi Julekha was due to
firearm injury as found on her person.
13. Now, I proceed to discuss the evidence of the
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so-called eye witnesses to ascertain whether the appellants are
liable for committing the murder of the deceased Bibi Julekha
by causing firearm injury.
14. P.W.1 Md. Gayas is the brother of the
informant Md. Ayazuddin (P.W.9). He has stated in his evidence
that the occurrence is of before 2 years and 1½ months. At
about 09.30 P.M., when he was going to sleep, after taking the
dinner, the accused Wali, Mustafa, Afaque, Nazbool, Rayes,
Wasique, Niaz, Riyaz, Samsuddin and Kasim entered into the
courtyard of Idris (P.W.4) and pointing the pistol made query
whereabouts of Wakil (P.W.9). His sister-in-law Bibi Noor Sadi
(P.W.5) moved from the courtyard, raising alarm, saying that the
life of Waki will not be spared. Thereafter, his mother Bibi
Julekha came out, raising alarm, then Wali opened fire, which
hit at Julekha. Afaque also opened fire but the said firing did
not hit to anyone. Julekha started crying, saying that Wali had
shot fire. Thereafter, Wali, Mustafa and Afaque entered into the
courtyard and pointed the pistol at the wife of the informant
(Wakil) and creating fear took the key and took the ornaments
from the almirah. In the meantime, someone put fire on the dry
grass, stored at the door. In the flame and smoke of fire, he
identified the accused. He has further stated in his cross
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examination that the accused Samsuddin is his grandfather in
relation and Wali is the son of Samsuddin. Rayesuddin is his
own brother. There is no paper regarding partition in between
his father and the accused Samsuddin. He has further stated that
his brother Ayazuddin (informant) used to do the pairvi in the
office of the Collector for providing house under Indira Awas
Scheme but the house was not allotted to him on the ground that
he has landed property. He has further stated that he and his
brother Md. Idris (P.W.4) used to reside in the same house and
courtyard is also the same. The house of the witnesses Md.
Islamuddin (P.W.2), Md. Yusuf and Md. Yakub (P.W.12) is 50
cubit away to his house. The house of the witness Md.
Islamuddin (P.W.2) is in south, whereas the house of the
witnesses Yusuf (P.W.7) and Yakub (P.W.3) are in the courtyard
of Islam. This witness has denied the suggestion of the defence
that he had not stated before the police that on the date of the
occurrence, he returned to his house after doing the work of
labourer from Araria and after taking dinner, he slept but P.W.13
Umashankar Choudhary, the Investigating Officer of the case,
has stated in his cross-examination at paragraph-14 that P.W.1
Md. Gayas had stated before him that on the date of the
occurrence, he returned from Araria after doing the work of
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labourer and slept on taking the dinner and after moving of the
accused, he reached near her mother and saw that she had died.
From the evidence of this witness, as discussed
above, it is apparent that while he has claimed to be eye witness
of the occurrence but he had stated before the Investigating
Officer (P.W.13) in his statement under Section 161 of the Code
of Criminal Procedure that he was sleeping at the time of the
occurrence and after moving of the accused, he came out of the
house and saw his mother dead. As such, this witness is not the
eye witness of the occurrence of causing gun shot injury to his
mother Bibi Julekha.
15. P.W.2 Md. Islamuddin has deposed in his
evidence that the occurrence is of before two years at about
09.00 P.M. in the night. At that time, he was at his house and on
hearing the sound of firing, he along with Yusuf and Yakub
(P.W.3) came out of the house and then saw that the mother of
Ayazuddin (P.W.9) was lying on the ground and was saying that
she was shot fire and also asked to take her to the hospital but,
thereafter, she died. At that time, the informant (P.W.9) and his
four brothers were present. He has further stated in his cross
examination that he had seen the occurrence from his door,
which is situated about 4-5 cubits from the place of the
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occurrence. At that time, the mother of Ayaz was speaking that
Ayaz had shot fire, due to that reason, all brothers of Ayaz were
quarreling to each other. This witness further stated that since
the evening of the date of the occurrence, the quarrel started in
respect to Indira Awas Scheme. He has further stated in his
cross examination that he had disclosed before the police that
P.W.9 was telling that if the house under Indira Awas Scheme is
not allotted to his brother Gayas (P.W.1), then he will object the
allotment of the house under Indira Awas Scheme to any
villager, due to that reason, quarrel started in between the
brothers of Ayaz.
From the evidence of P.W.2, it is clear that when he
along with Yusuf and Yakub (P.W.3) came out of the house, at
that time, the mother of Ayaz (P.W.9) was lying on the ground
and she was telling that Ayaz (P.W.9) had shot fire at her. He
has not stated in his evidence about the presence of the
appellants at the place of the occurrence, at the time of
occurrence.
16. P.W.4 Md. Idris has deposed in his evidence
that the occurrence is of at about 09.30 P.M. of 17.06.1999. At
that time, he was sitting in his courtyard. All of sudden, 20-25
persons entered into the courtyard and surrounded him. Out of
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them, he identified the accused Md. Wali, Md. Afaque, Md.
Rayes, Zakir, Riyaz, Nazbool, Kasim, Wasique, Niaz, Mustafa
and Samsuddin. The accused Md. Wali, Afaque and Mustafa
had three- nuts in their hands. The accused Wali and Afaque on
the point of three-nut asked him to keep silent. In the meantime,
his wife Noor Sadi (P.W.5) moved from there to inform
Ayazuddin (Wakil). All the accused made query to him about
the whereabouts of Wakil, saying that Wakil will not be spared.
His wife Noor Sadi entered into the courtyard of Wakil and
started raising alarm, for moving to Wakil, thereupon his
mother came out to the courtyard, then the accused Wali,
Afaque and Mustafa having three-nuts in their hands proceeded
towards courtyard of Wakil (Ayazuddin) and also made query
of whereabouts of Wakil to his mother, saying that Wakil will
not be spared on which his mother raised alarm to flee away,
then Wali and Afaque opened fire through three-nuts, which hit
to his mother. Thereafter, his mother told that she had been
shot fire and she fell down. Thereafter, accused Wali, Afaque
and Mustafa entered into the house of Ayazuddin (Wakil) and
took the key of Godrej creating terror on his wife and took the
ornaments from the Godrej. The lantern was burning at the
door, at that time, fire was put in the grass, stored at the door,
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due to which light spread over and then all accused fled away
from there. When he reached near his mother, then she told that
Wali had shot fire and also asked to carry her to the hospital.
This witness has further stated that Wali, Mustafa, Afaque and
Rayes under conspiracy with the B.D.O. used to realize the
money for allotment of the fund for the house under Indira Awas
Scheme, which was protested by his brother Ayazuddin (P.W.9)
and he had also filed an application, which was inquired by the
D.D.C. and several allotments were cancelled. Due to that
reason, the accused had come for committing "Maar-Peet".
This witness has denied the suggestion of the defence to the
effect that he had stated before the police in his statement under
Section 161 of the Code of Criminal Procedure that he had not
seen to anyone to shot fire and his courtyard was surrounded by
thatched wall but P.W.13 Umashankar Choudhary, the
Investigating Officer of the case, in his cross examination in
paragraph-5 has stated that this witness had stated before him
that he had not seen to anyone to shot fire and the land dispute
was going on with the accused Wali. This witness has further
stated in his cross examination in paragraph-6 that in the east of
his door, the house of his father Sakoor and the informant
Ayazuddin is situated. In the north of his door and the door of
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the informant, the house and door of accused Samsuddin is
situated. Samsuddin is his grandfather in relation. This witness
has further stated in his cross examination at paragraph-18 that
one minute after the firing, he came out from the courtyard and
reached at the door, where 25-30 persons including the accused
were present. He further stated that when he reached near his
mother, she was lying on the ground and after 1-2 minute, she
died. He reached near his mother at first, thereafter, his other
brothers reached there.
From the evidence of this witness, it is apparent
that he is not the eye witness of the occurrence and reached at
the place of the occurrence after hearing the sound of firing.
17. P.W.5 Bibi Noor Sadi is the wife of P.W.4 Md.
Idris and sister-in-law of the informant (P.W.9). She has stated
in her evidence that at about 09.30 P.M., on the date of the
occurrence, she was at her courtyard. All of sudden, 20-25
persons entered into her courtyard, out of which she identified
the accused Wali, Wasique, Niaz, Samsuddin, Kasim, Nazbool,
Riyaz, Afaque, Mustafa, Zakir and Rayes. Accused Wali,
Afaque and Mustafa caught hold her husband Idris (P.W.4) and
made query of whereabouts of Wakil, saying that Wakil would
not be spared. At that time, the accused Wali, Afaque and
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Mustafa were armed with pistols. She, anyhow, concealing
herslf fled away and reached in the courtyard of Wakil (P.W.9),
and raising alarm asked Wakil to flee away. On hearing her
voice, her mother-in-law Bibi Julekha came out from the
courtyard, then she also proceeded behind her. In the meantime,
Wali fired, which hit at her mother-in-law Bibi Julekha. Afaque
also made firing. She identified them in the light of lantern. On
sustaining firearm injury on chest, her mother-in-law fell down.
Thereafter, Wali, Afaque and Mustafa entered in the house of
Wakil (P.W.9) to search him, then her mother-in-law raised
alarm to flee away, saying that she was shot fire. In the
meantime, the grass, stored at the door, started burning in which
she identified the accused and, thereafter, the accused fled away.
Thereafter, she reached near her mother-in-law, who told that
son had shot fire and asked to rush her to the hospital. She has
further stated that after allotment of the house under Indira Awas
Scheme, the dispute was going on in between Wakil (P.W.9) and
the accused. This witness has denied the suggestion of the
defence that she had stated before the police that her mother-in-
law had told that son had shot fire but P.W.13 Umashankar
Choudhary, the Investigating Officer of the case, has stated in
his cross examination at paragraph-8 that this witness had stated
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in her statement under Section 161 of the Code of Criminal
Procedure that the deceased was lying on the ground and she
disclosed that son had shot fire.
From the evidence of this witness, it is apparent
that while she has stated in her examination-in-chief that Md.
Wali shot fire at the deceased but she had stated before the
police in her statement under Section 161 of the Code of
Criminal Procedure that the deceased on sustaining firearm
injury fell down on the ground and she disclosed that she had
been shot fire by son. As such, this witness is not the eye
witness of the occurrence and when she reached near the
deceased, deceased informed that she had been shot fire by son.
18. P.W.6 Nargis Bano is the wife of the
informant Md. Ayazuddin (P.W.9). She has stated in her
evidence that before 2½ years at about 09.30 P.M., she was
going to sleep in the room after taking the dinner. In the
meantime, her Gotani Noor Sadi (P.W.5) came from the west
direction in the courtyard and raised alarm to flee away Wakil
Saheb (informant Ayazuddin) as several persons had come to
kill him. On hearing the voice of her Gotani, her mother-in-law
Julekha came out from the house and her husband was also
behind her mother-in-law. Seeing her husband, the appellant
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Wali opened fire but the same hit to her mother-in-law, who was
in front of her husband. At that time, her mother-in-law asked
to her son (informant) to flee away. Thereafter, she along with
her husband entered into the house and tried to lock the door
from inside but the appellants Wali, Afaque and Mustafa entered
into the house having pistol in their hands and made query about
her husband but she did not give reply. Thereafter, on the point
of pistol, they took the key of almirah and took away the
ornaments after opening the almirah. Her mother-in-law after
sustaining firearm injury died. In respect to allotment of the
house under Indira Awas Scheme, the dispute was going in
between her husband with the appellants Rayes, Afaque and
Wali regarding which the case was also instituted. At the time
of the occurrence, she also identified Nazbool, Niaz, Zakir,
Wali, Wasique, Kasim, Afaque and Riyaz. In her cross
examination, in paragraph-2, she denied the suggestion of the
defence that she had stated before the police that she learnt, later
on, that her mother-in-law was shot fire and died at the door but
P.W.13, who is the Investigating Officer of the case, has stated
in his cross examination at paragraph-9 that Nargis Bano
(P.W.6) had stated before him that she came to know, later on,
that her mother-in-law was shot fire and died at the door and she
Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018
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had only heard the sound of firing.
While this witness has claimed to be eye witness of
the occurrence but she had stated before the police in her
statement under Section 161 of the Code of Criminal Procedure
that she came to know, later on, that her mother-in-law had been
shot fire, who died at the door and she had only heard the sound
of firing. As such, this witness is not an eye witness of the
occurrence and first time, she gave statement before the trial
court, claiming eye witness of the occurrence.
19. P.W.7 Md. Abesh Alam is the brother of the
informant Md. Ayazuddin (P.W.9). He has stated in his evidence
that the occurrence is of before two years and eight months of
09.30 P.M. At that time, after taking the dinner, he was going
to sleep, then 20-25 persons including the appellants Md.
Mustafa alias Pasa, Afaque, Wali, Zakir, Rayes, Wasique, Niaz,
Riyaz, Nazbool, Kasim with Samsuddin entered into the
courtyard of his brother Idris (P.W.4). The appellants Afaque,
Wali, Mustafa and Zakir encircled his brother Idris (P.W.4) and
on the point of three-nut asked about Wakil (informant Md.
Ayazuddin) in abusive language. In the meantime, his Bhabhi
Bibi Noor Sadi (P.W.5), raising alarm moved from there and
entered into the courtyard of Wakil Saheb (informant Md.
Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018
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Ayazuddin) and asked Wakil Saheb to flee away, saying that
several persons have come to kill him. On hearing the alarm of
his Bhabhi, his mother Bibi Julekha came out from the house
towards door and Wakil Saheb (informant Md. Ayazuddin) also
proceeded behind his mother, followed by Noor Sadi (P.W.5).
He and his Bhabhi also proceeded behind them. In the
meantime, appellants Afaque, Wali, Mustafa, Zakir and others
started to move towards courtyard of Wakil Saheb (informant
Md. Ayazuddin). On seeing his mother, Wali made query to her
about Wakil Saheb (informant Md. Ayazuddin) in abusive
language and on seeing Wakil Saheb (informant Md.
Ayazuddin), Wali shot fire at him through pistol but the same hit
his mother. Afaque also made firing but the same did not hit to
anyone. At that time, her mother, in injured condition, told to
Wakil to flee away, saying that Wali had shot fire. Thereafter,
he along with his other family members concealing themselves
fled away from there. Thereafter, Afaque, Mustafa, Wali and
Zakir entered into the house of Wakil Saheb (informant Md.
Ayazuddin) and creating fear, took the key of Godrej from the
wife of Wakil Saheb (informant Md. Ayazuddin) and took away
the golden ornaments after opening the Godrej. In the
meantime, someone put fire in the dry grass stored at the door,
Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018
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in the light of which, he identified the accused fleeing away
from there. He has further stated that Wakil Saheb (informant
Md. Ayazuddin) had given an application before the D.D.C. for
enquiry in the distribution of the houses under Indira Awas
Scheme, due to that reason, the allotment of the house under
Indira Awas Scheme was stopped. His brother Wakil Saheb
(informant Md. Ayazuddin) had also filed a case against the
appellants Afaque, Rayes and the B.D.O. and also got the same
published in the newspaper, due to that reason, the alleged
occurrence took place. He has also stated in his cross
examination that in respect to Indira Awas Scheme, the dispute
is going on in between his brother Wakil Saher (informant Md.
Ayazuddin) and Afaque. This fact was also disclosed by him
before the police. This witness showed his ignorance to the
suggestion of the defence about lodging of the criminal case
bearing G.R. 807 of 1993 by Samsuddin, the father of the
appellant Wali, in which he was accused. He has further stated
in his cross examination at paragraph-6 that while he and his
family members had raised alarm but no person of the Mohalla
had come. Wakil Saheb (informant Md. Ayazuddin) also moved
from Angan and concealed himself somewhere. In the same
paragraph, this witness further stated that his mother died within
Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018
24/34
3-4 minutes after sustaining firearm injury. When he along with
others reached near his mother, Idris (P.W.4), Noor Sadi (P.W.5)
and Ayazuddin (P.W.9) were present. At that time, he did not
talk to any family members. In paragraph-8 of his cross
examination, this witness stated that after staying few time, he
proceeded for police station. He further stated in paragraph-9 of
his cross examination that he had heard two sounds of firing and
came with Darogaji and showed him the dead body and blood.
This witness further stated in his cross examination at
paragraph-10 that he reached at the police station within 1/2
hour and returned from there on a jeep of the police. This
witness further stated in his cross examination at paragraph-12
that the place, where his mother was shot fire, was at a distance
of 5-6 cubits to the house of Wakil Saheb (informant
Ayazuddin). In the said house, he and his father used to reside.
At the time of the occurrence, his father was not present at the
house and he brought his father after the occurrence. In the
same paragraph, this witness stated that his statement was
recorded by the police on the next day. This witness has denied
the suggestion of the defence in paragraph-14 of his cross
examination to the effect that it is not true that on the date of the
occurrence, since 09.00 A.M., quarrel started in his courtyard
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and, in that course, he tried to convince his brother Wakil Saheb
(informant Ayazuddin) for returning the money, which was
taken by him from different persons for providing the house
under Indira Awas Scheme. In that course, Wakil Saheb
(informant Md. Ayazuddin) became anger and made firing but
the same hit at his mother, who had reached there for rescue.
He also denied the suggestion of the defence to the effect that
since the dispute was going on in between Wakil Saheb
(informant Ayazuddin) with the appellants, due to that reason,
they have falsely been implicated in this case.
From the evidence of this witness, it appears that he
has claimed to be an eye witness to the occurrence and just
after the occurrence, he went to the police station and returned
to the place of the occurrence on a jeep of Darogaji but his
statement was recorded next day after the occurrence by the
police.
20. P.W.8 Abdul Sakoor is the husband of the
deceased and the father of the informant Md. Ayazuddin
(P.W.9). This witness has stated that the occurrence is of 09.30
P.M. of 17.06.1999. At that time he was not at his house as he
had gone to the house of his daughter in village-Gayeri. He
returned in the same night at 02.00 P.M., then he was informed
Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018
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by his sons Idris (P.W.4), Gayas (P.W.1), Abesh (P.W.7) and
Ayazuddin (P.W.9), Bibi Noor Sadi (P.W.5) and Bibi Nargis
(PW.6) that the appellants Mustafa, Afaque, Zakir, Rayes, Bali,
Wasique, Kamruddin Mian alias Kasim, Nazbool, Riyaz along
with Samsuddin and 25-30 persons had come having Farsa,
Bhala and three-nuts in the courtyard of his elder son Idris
(P.W.4) and caught hold of Idris and also threatened him to kill.
At that time, Noor Sadi (P.W.5) rushed to the courtyard of Wakil
Saheb (informant Ayazuddin) and told him that the people had
come to kill him and asked him to flee away. In the meantime,
his wife Bibi Julekha accompanied by Noor Sadi (P.W.5) and
Wakil Saheb (P.W.9) came out from the house, then on seeing
Wakil Saheb (P.W.9), Wali and Afaque fired through three-nut.
The firing of the appellant Wali hit his wife, while firing of
Afaque did not hit to anyone. He, later on, came to know that
Ashfaque, Bhura, Farooque, Yusuf and Fazil were also the
members of an unlawful assembly. He further stated in his cross
examination that his son Ayazuddin alias Wakil (P.W.9) had
lodged a case against him regarding theft of the ornaments but
the ornaments, later on, were recovered in the house, then case
was compromised. The said case was lodged by Ayazuddin
alias Wakil (P.W.9) before one year of the present occurrence.
Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018
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He has further stated in his cross examination that he did not
know whether Ayazuddin alias Wakil had also filed a case
against his father-in-law, mother-in-law and wife. He has also
showed his ignorance that G.R.807 of 1993, 1984 of 1988 are
going in between him and the appellants. He further stated that
before 10 years, he was Advocate's clerk in the Civil Court. He
has also stated that while he met to the police in the same night
of the occurrence but he gave his statement before the police
after two days of the occurrence. He has also stated in
paragraph-23 of his cross examination that accused Samsuddin
is his uncle and his sons are accused in this case. In paragraph-
27 of his cross examination, this witness stated that the house of
accused Wali is situated nearby his house.
From the evidence of this witness, it is apparent
that he at the time of the occurrence was not at the house and
when he reached at 02.00 P.M. in the night of the occurrence,
his wife had died and he came to know about the occurrence
from his sons Idrish (P.W.4), P.W.1 Gayas, P.W.7 Abesh and
P.W.9 Ayazuddin and Bibi Noor Sadi (P.W.5) and Nargis
(P.W.6). From the evidence of this witness, it is also clear that
the appellants are his pattidars and neighbours.
21. P.W.9 Md. Ayazuddin is the informant of this
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case. He has stated in his evidence that on 17.06.1999 at about
09.30 P.M., he was in the process of sleeping, after taking
dinner. All of sudden, the appellants along with Samsuddin and
25-30 unknown having Bhala, Farsa and three-nut in their
hands, forming an unlawful assembly entered into the courtyard
of his brother Idris (P.W.4), who was sitting there. On the point
of pistol, the appellants Mustafa alias Pasha and Afaque asked
Idris to sit and made query about him. In the meantime, his
Bhabhi Noor Sadi (P.W.5) moved from the courtyard and
reached in his courtyard, raising alarm that the accused are
searching him (Wakil). Thereafter, her mother Bibi Julekha
moved from the courtyard towards door and he also proceeded
behind her along with his Bhabhi Noor Sadi (P.W.5). At the
door, lantern was burning and in the light of lantern, he saw the
appellants Md. Mustafa, Md. Afaque and Md. Wali having
three-nut in their hands coming towards the courtyard. On
seeing her mother, Wali made query to her about him in abusive
language, saying that he will not be spared. In the meantime,
they saw him, then the appellants Md. Wali and Md. Afaque
fired through three-nut. The firing of Md. Wali hit her mother
but the firing of Afaque did not to anyone. After sustaining
firearm injury, his mother fell down, saying that Wali had fired
Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018
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and also asked to take her to the hospital. At that time, he,
anyhow, concealed himself and saved his life. The appellants
Md. Mustafa, Md. Afaque and Md. Wali, thereafter, entered in
his house and on the point pistol, took the key of the Godrej
from his wife (P.W.6) and took away the ornaments. The cause
of the occurrence is that the appellants Afaque and Rayesuddin
used to do the work of broker under Indira Awas Scheme and
used to collect the money from the persons on the pretext of
providing the house under the said Scheme in collusion with
B.D.O. He had made complaint to the higher authorities
regarding the same, which was enquired by the D.D.C. Later
on, he filed Complaint Case No.853C of 1999 on 01.06.1999
against the B.D.O., Afaque and Rayesuddin. Due to filing of the
said case, the appellants used to give threatening to him
regarding which he had also gave an informatory petition on
02.06.1999and also got published the same in the newspaper, due to that reasons, the present occurrence took place. He has further stated that Darogaji recorded his fardbeyan at his house and after reading over the same, he put his signature on the fardbeyan and he proved his fardbeyan as Ext.1. He has stated in his cross examination that he joined the Araria Bar Association on 14.11.1996. On his application, resolution was Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018 30/34 passed by Araria Bar Association regarding the present occurrence for proper action, the copy of which was sent to the S.P., Araria by the Presiding and Secretary and both had also met to the S.P. He has further stated in paragraph-19 of his cross examination that vide Resolution No.2/12.07.1999, he was suspended from the Araria Bar Association but, later on, his suspension was revoked. He has further stated that his mother had sustained injury on her chest, at a distance of 13 fts. from his house. He has further stated in his cross examination in paragraph-25 that in the night of the occurrence, police was deputed for watching the dead body of his mother and the inquest report was prepared in the next morning by the police at about 06.00 A.M. This witness further stated in paragraph-31 that in this case, in addition to his family members, Yakub (P.W.3) and Islam (P.W.2) are the witnesses. This witness further stated in paragraph-32 that after 2-3 hours of recording of his fardbeyan, he came to know that Farooque, Ashfaque,, Bhoora alias Yusuf and Mahboob were also indulged in committing the occurrence. He had stated the name of the aforesaid persons before the police in his restatement but it appears that the police did not mention their names. He has further stated in paragraph-37 of his cross examination that he Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018 31/34 has no paper regarding doing the work of broker by Afaque, Rayes and Md. Wali. Only the villagers had disclosed him regarding the said fact. He has also stated that lantern was burning at the time of the occurrence. Whether it was taken by the police or not, it is not in his memory. He has further stated in his cross examination in paragraph-39 that he had lodged a case , i.e., G.R. No.1704 of 1998 against his father, mother and brother, on mere suspicion, for committing the theft of the ornaments of his wife but the ornaments were recovered, later on, in the house, then the said case was compromised. He has further stated that before the present occurrence, he had lodged a case under Section 107 of the Code of Criminal Procedure against the appellants. He has further stated in paragraph-44 that on 26.09.2002, a joint meeting of Bar Association and Advocates' Association, Araria, was held, in which he was warned to improve his behaviour, not to lodge the false case under Section 376 of the Indian Penal Code. This witness has further stated in his cross examination at paragraph-56 that he had lodged a case for the offence under Sections 379 and 406 of the Indian Penal Code against Dharmdeo Bhagat, Advocate, and the said case was compromised. He has further stated in paragraph-64 that the witnesses, Md. Fazid (D.W.9), Radhe Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018 32/34 Ram (D.W.4), Saryug Ram (D.W.3) and Zuber (D.W.6) were in the camp of the accused but he has no knowledge whether the Investigating Officer had recorded their statements during investigation or not. He has further stated in paragraph-65 of his cross examination that he had also lodged a case against the owner ofHindustan Medical Store because on the date of the filing of nomination in the District Board Election, he had asked him that the money is due against him but, later on, he accepted that he had committed mistake. This witness has denied the suggestion of the defence to the effect that he is quarrelsome and in course of quarrel, he made firing, which hit to his mother.
From the evidence of P.W.9 Md. Ayazuddin (informant), it is obvious that he is in habit of lodging the case against the members of Bar Association, Araria, and general people in respect to petty matter for the purpose of putting the pressure, even he also lodged the case against his parents with false allegation of theft. This witness was also warned in the meeting of Bar Association, not to lodge false case of rape. This witness has also litigating and inimical term with the appellants, who are his neighbours and Pattidars.
22. From the evidence of the prosecution witnesses, as discussed above, it is clear that the informant Md. Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018 33/34 Ayazuddin (P.W.9) has enmity with the appellants, who are his aganates and neighbours. P.W.1 Md. Gayas, P.W.2 Md. Islamuddin, P.W4 Md. Idris, P.W.5 Bibi Noor Sadi and P.W.6 Nargis Bano are not the eye witnesses of the occurrence, rather when they reached at the place of the occurrence on hearing the sound of firing, then saw the deceased Bibi Julekha (mother of the informant Md. Ayazuddin), lying on ground in injured condition. P.W.2 Md. Islamuddin has stated that on hearing the sound of firing when he along with Md. Yusuf and Yakub (P.W.3) came out from the house, then saw that the mother of Ayazuddin (P.W.9) was lying on the ground and told that she was shot fire by Ayaz (P.W.9) and brothers of Ayaz were quarreling to each other. P.W.5 Bibi Noor Sadi, sister-in-law of the informant Md. Ayazuddin (P.W.9), also stated in her evidence that when she reached near her mother-in-law Bibi Julekha on hearing the sound of firing, she told that son has shot fire and asked to accompany at hospital. P.W.7 Md. Abesh Alam, who claimed to be eye witness of the occurrence, has stated in his evidence that after staying few time at the place of the occurrence, he proceeded for police station and returned from police station on a Jeep with police but the first information given by him to the police has not been brought on Patna High Court CR. APP (DB) No.973 of 2006 dt.31-10-2018 34/34 the record. As such, the aforesaid facts create serious doubt about the manner of the occurrence, as alleged by the informant Md. Ayazuddin (P.W.9) in his fardbeyan, and false implication of the appellants cannot be ruled out due to enmity.
23. On the basis of the facts and the circumstances of the case and the evidence, as discussed above, I find that the prosecution has not been able to prove its case and the charges levelled against the appellants beyond all reasonable doubts.
24. In the result, all the aforesaid three criminal appeals are allowed and the Judgment of conviction dated 26.09.2006 and Order of sentence dated 27.09.2006 passed by the Additional Sessions Judge, Fast Track Court No.III, Araria, in Sessions Trial No.189 of 2001 are, hereby, set aside and the appellants are acquitted of the charges. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.
( Rajendra Kumar Mishra, J) Hemant Kumar Srivastava, J :- I agree.
(Hemant Kumar Srivastava, J) Pradeep Srivastava/-
AFR/NAFR NAFR CAV DATE 25.07.2018. Uploading Date 31.10.2018. Transmission Date 31.10.2018.