Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 148 (PAT)

Mohd. Hashim @ Guddu v. State Of Bihar

2000-01-27

A.K.PRASAD, P.K.DEB

body2000
Judgment P.K.Deb, J. 1. These two appeals have been preferred against the common judgment and order dated 27-9-1995 and 29-9-1995 respectively passed by the then Additional Sessions Judge, Chatra in Sessions Trial No. 34/93 whereby and where under both the appellants had been convicted under Sections 302 and 34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. 2. A criminal case was lodged on the basis of the fardbeyan (Ext.3) made by PW8 Abdul Rauf to the effect that they were seven brothers including the informant and as per amicable partition amongst them each of them were residing with their families separately. Informant was School Teacher at the relevant time. He was under order of transfer from Jogiara to Paharjmr under Basisthnagar Police Station. According to the informant, the land and house of Md. Ezazul Haque @ Riaz appellant in Cr. Appeal No. 147/95 (R) was adjacent east to the Bari of the Informant. About a week ago since the date of lodging of the information accused Riaz Mian was putting fencing encroaching the land of the informant. On this the informant raised protest. On the date of occurrence, i.e. 19-7-1993 in the morning hours accused Riaz Mian was fixing a Pole within the land of the informant on which the informant raised his voice then the Riaz Mian threatened him but the informant did not take the threatening seriously as Riaz was his own brother. Then, the informant went to his school at Pratappur on a bicycle to bring his last pay certificate. While he was returning home, he was informed by PW2 Javed and PW 5 Doma who was proceeding by a Motor Cycle informed him that his son Imran Tarik @ Saheb was murdered by the accused-appellants alongwith another Md. Akub Mian. On hearing the news, he gave his bicycle to Doma and came to the house on the motor cycle, he found his son Saheb lying in the Dhaba of his brother Faiyaz (PW9). His neck and ear were cut and much blood was found on the earth. There he knew from his wife Shabnam Pravin (PW 6) that at 11 a.m. deceased Saheb had taken his younger brother Sahbaz Alam aged about 3 years in the open ban of Md. Ali for attending himself for natures call. Deceased Saheb was standing in the Dhaba of Faiyaz (PW 9). There he knew from his wife Shabnam Pravin (PW 6) that at 11 a.m. deceased Saheb had taken his younger brother Sahbaz Alam aged about 3 years in the open ban of Md. Ali for attending himself for natures call. Deceased Saheb was standing in the Dhaba of Faiyaz (PW 9). On hulla raised by Saheb, she came out and saw that accused-appellant Ezezul Haque @ Raiz was inflicting injuries by Fasuli on the neck of Saheb and accused Md. Akub and accused Hashim Mian @ Guddu were catching his hands. Saheb was found in the pool of blood. Md. Ali (PW 7) rushed there and saw the accusedpersons killing the deceased and on his hulla other persons came but the accused-persons fled away with the blood-stained Fasuli towards the east. On going near to Saheb the wife of the informant found him dead. On the fardbeyan Ext. 3 as per detailed above formal First Information Report (Ext. 1) was drawn up and a case was registered under Secs. 302/34 of the Indian Penal Code against three accused persons two being accused-appellants and another Md. Ayub alias Md. Aukub Mian. 3. During the course of investigation the dead-body of Saheb was inquest and was sent for autopsy. Place of occurrence was visited and after completion of investigation charge-sheet was submitted against all the three accused-persons under Secs. 302/34 of the Indian Penal Code. On being committed to the sessions charges were framed against all the three accused persons under the said section of the Indian Penal Code vide order dated 1-9-1994 and when the charges were read over and explained to the accused persons they pleaded not guilty. 4. The defence case as is found from the cross-examination of the prosecution witnesses and the statement made under Sec. 313 of the Code of Criminal Procedure is of denial of prosecution case and the involvement of the accused-persons with the crime. 5. For and on behalf of the prosecution as many as 11 witnesses have been examined out of them PW 1 Rajendra Singh is a Police Constable who is only a formal witness. PW 2 Md. Javed, and PW 5 Md. 5. For and on behalf of the prosecution as many as 11 witnesses have been examined out of them PW 1 Rajendra Singh is a Police Constable who is only a formal witness. PW 2 Md. Javed, and PW 5 Md. Mahbood Alam @ Doman are alleged to be the persons who came to the place of occurrence on hearing hulla and they informed about the occurrence including the names of the accused persons to the informant but PW 5 turned hostile. He did not support the prosecution case. PW 2 Md. Javed although admitted that he went to inform the informant about the occurrence on motor cycle alongwith PW 5 Md. Mahbood Alam @ Doman, but he also did not support the prosecution case regarding reporting of the names of the accused persons by the wife and mother of the informant rather he stated that on being asked the wife of the informant stated that they did not know as to who had killed Saheb. PW 3 Ramdeo Bhuiyan is simply tendered. PW 4 Arjun Bhuiyan who alleged to have come to the place of occurrence and was reported of the occurrence has turned hostile. PW 6 Shabnam Parvin is the mother of the deceased and she had supported the prosecution case during the course of her evidence but as her deposition recorded was not signed by the Presiding Officer then as per objection being raised from both the A.P.P. and the defence Counsel in the trial Court that she was further summoned to appear for verifying her earlier statement before the Court but she did not come even after issuance of warrant of arrest and as such on joint consent being given by the APP and the defence counsel the evidence of PW 6 Shabnam Parvin had been expunged. PW 7 Md. Ali@ Doctor happens to be one of the brothers of the informant and the appellant Ezazul Haque. He posed himself to be an eye-Witness to the occurrence. PW 9 Md. Faiyaz Alam who was examined as prosecution witness of having seen a part of the occurrence and being reported the names of the accused persons have not supported the prosecution case and as such he has been declared hostile. PW 10 Dr. Nand Kishore Pd. He posed himself to be an eye-Witness to the occurrence. PW 9 Md. Faiyaz Alam who was examined as prosecution witness of having seen a part of the occurrence and being reported the names of the accused persons have not supported the prosecution case and as such he has been declared hostile. PW 10 Dr. Nand Kishore Pd. Jaiswal was the Civil Assistant Surgeon at the relevant time and he held post-mortem over the dead-body of deceased Saheb and found the following injuries on his persons (1) Incised cutover right side of neck extending up to right ear pinna about 6" x 3" bone deep spindle shaped and cut structures on right ear pinna muscle of neck on right side right carotid vessels and nerves on right side of neck trachea oasphague half body of sixth circle vertebras wound situated obliquely down-wards and covered with dry red clotted blood. As per opinion of the doctor the death was caused due to haemorrhage and shock resulting from the injury. 6. PW 11 Raj Kishore Singh is the Investigating Officer. He has proved the alleged statement of the hostile witnesses made before him. The star witness of the prosecution case PW 8 Abdul Rauf the informant has also not supported the prosecution case. He has also been declared hostile and he has completely denied the averments made in the fardbeyan and according to him his signature was taken on a blank sheet and the story has been concocted in the fardbeyan by the police alongwith other persons. 7. The learned Sessions Judge after considering the evidence on record and relying solely on the evidence of PW 7 Md. Ali@ Doctor arrived at the conclusion that although the vital witnesses had attempted to give away from the prosecution case but their statements made before the Investigating Officer soon after the occurrence being supported by PW 7 Md. Ali@ Doctor the eye-witness to the occurrence the prosecution could be able to prove the guilt of the two accused-appellants and. as such convicted and sentenced them as mentioned above. But he has granted acquittal on benefit of doubt to the third accused namely. Md. Ayub alias Md. Aukub Mian, Mr. Ali@ Doctor the eye-witness to the occurrence the prosecution could be able to prove the guilt of the two accused-appellants and. as such convicted and sentenced them as mentioned above. But he has granted acquittal on benefit of doubt to the third accused namely. Md. Ayub alias Md. Aukub Mian, Mr. T.R. Bajaj learned Counsel appearing for and on behalf of the appellants assailed the impugned judgment of conviction submitting that practically the present case is a case of no evidence and the learned Court below wrongly relied on PW 7 Md. Ali@ Doctor as eye-witness to the occurrence when he was neither named in the FIR nor was stated by anyone to be an eye-witness to the occurrence: (ii) that when the genesis of the prosecution case has been denied by the informant himself then there remained no case to be supported by so called eye-witness PW 7 Md. Ali@ Doctor Mr. P. Chatterjee learned APP appearing for and on behalf of the State has submitted that it is true because of some mitigation between the family members the vital prosecution witnesses have turned hostile but the fact remains that the mother who was definitely an eyewitness to the occurrence supported the prosecution case in toto but her evidence had been wrongly expunged by the learned Sessions Judge and if her evidence is taken into consideration alongwith the other eye-witness PW 7 Md. Ali@ Doctor then the prosecution case has definitely been established against the two accused-appellants. 8. In the light of the submissions made by both the parties. I have scrutinised the entire records materials and the evidence of the individual witnesses and also the impugned judgment passed by the learned Sessions Judge. 9. A minor boy was killed because of a family feud and perhaps for that reason or reasons some mitigations might have been taken place between the parties and hence the genesis of the prosecution case has been denied by the father of the boy himself who was the Informant in the case but that had happened behind the screen we are not concerned with it but we are to see as to what materials are there on record. The prosecution case has lodged on the basis of the information given by PW 8 Abdul Hauf father of the deceased. The prosecution case has lodged on the basis of the information given by PW 8 Abdul Hauf father of the deceased. He is not an eye-witness of the occurrence but immediately after the occurrence he was reported about the occurrence including the names of the accused-persons but not only he has denied about the statements made in the fardbeyan but the statements made had also not been supported by the reporters. namely. PW 2. Md. Javed and PW 5 Md. Mahbood Alam @ Doman. PW 2 has not been declared hostile but he stated that he was not reported of the names of the assailants by the wife and mother of the informant and. as such. as per his evidence the names of the assailants cannot be reported to PW 8 by them. The other persons who came to the place. of occurrence immediately after the occurrence have also turned hostile and have not supported the occurrence. PW 8 went to the extent that on coming to the house also he had not been reported about the names of the assailants by his wife and mother. It is true that PW.6 Shabnam Parvin to some extent in her deposition had supported the prosecution case but her evidence has been expunged. Such expunction because of non-signing by the Presiding Officer in the deposition form may not be very regular but when that expunction order had been passed on consent by both the parties and when that order has never been challenged by there is no scope for this Court to enter into her evidence. When the same evidence should be construed to be non-existent on records then we are left only with the evidence of so-called eye-witness PW 7 Md. Ali@ Doctor. He happens to be one of the brothers of the informant and also of one of the accused-appellants. That the brothers were not maintaining any good relations at the relevant time of occurrence is apparent on the face of the record. This witness had not been cited as an eye-witness as per fardbeyan nor anybody has stated that this PW7 had stated to the persons assembled there that he had seen the occurrence and reported the names of the assailants as it appears that he is only a got-up witness. This witness had not been cited as an eye-witness as per fardbeyan nor anybody has stated that this PW7 had stated to the persons assembled there that he had seen the occurrence and reported the names of the assailants as it appears that he is only a got-up witness. However, on scrutiny of the evidence it could be found that he was outside his house and standing on the road informant of a ration shop. Then, he saw the accused-persons running towards the place of occurrence alongwith fasuli. The place of occurrence is on the backside of the house and definitely from the place or the site where this witness was standing the place of occurrence was not visible because of the barrier of the house and the shop itself. The entrance to the house is from a gali which runs by the side of the road so one should take sometime to reach the place of occurrence from the place where this witness was standing. He stated that when he heard alarm, he went to the place of occurrence and found the deceased being killed by the accused persons. It does not seem to be probable of seeing the assault by this witness. The alarm was raised when already assault was made then this witness cannot see the assault when he ran to the place of occurrence and crossed some distance through the gali from the main road to reach the place of occurrence. In that way, if his evidence is scrutinised, it cannot be said that he is an eye-witness to the occurrence. Moreover, on his evidence also one of the co-accused had been acquitted by the learned Court below stating that his participation in the occurrence was doubtful. This witness has implicated all the three accused persons in the same manner, then if one of the accused is found to be not there or his participation becomes doubtful then on the same analogy, the involvement of the accusedappellants also becomes doubtful. Moreover, except this witness no other witnesses or the prosecution side have supported the prosecution case neither the father nor the mother who were the natural witnesses to the occurrence. Some of evidence of the hostile witnesses have been taken aid of by the learned Sessions Judge for corroboration of the evidence of eyewitness PW 7. Moreover, except this witness no other witnesses or the prosecution side have supported the prosecution case neither the father nor the mother who were the natural witnesses to the occurrence. Some of evidence of the hostile witnesses have been taken aid of by the learned Sessions Judge for corroboration of the evidence of eyewitness PW 7. But, when PW 7is found to be not an eye-witness to the actual assault then the corroboration has got no legal basis. Hence, the corroboration is of no avail. Thus, on close scrutiny of the evidence of the witnesses from the prosecution side. I find that the prosecution could not be able to prove the guilt of the accusedappellants beyond all reasonable doubts as they also stand on the same footing as that of the other accused-appellant who had been acquitted on benefit of doubt by the learned Sessions Judge. 10. In the result, the appeals are allowed. The impugned judgment of conviction and sentence is hereby set aside. The accused-appellant Md. Hashim @ Guddu is relieved of the bailbond on the basis of the bail order being passed in Criminal Appeal No. 134 of 1995(R) vide order dated 19-10-1995. The other accused-appellant Ezazul Haque alias Riaz Mian alias Riyazuddin may be released forthwith if he is not wanted in any other case. A.K.Prasad, J. 11 I agree.