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2000 DIGILAW 67 (PAT)

Ahmad Mian v. State Of Bihar

2000-01-14

D.P.S.CHOUDHARY

body2000
Judgment D.P.S.Choudhary, J. 1. This jail appeal has been preferred against the Judgment and order dated 13th of July, 1994 passed by the Sessions Judge, Gopalganj in Sessions Trial No. 106 of 1993 convicting the appellant under Sec. 307 of the Indian Penal Code (hereinafter referred to as the I.P.C) and sentenced to undergo R.I. for 10 years. The appellant was charged for and tried by the Court below for the offence under Sec. 307 of the IPC. and Sec. 3 of the Explosive Substances Act but the Court below acquitted the accused-appellant under Sec. 3 of the Explosive Substances Act on the ground that there was no sanction order for the prosecution under this Act against the accused. 2. The brief facts of the case are that on 20.4.1992 at village Barwa, Kaparpura, P.S. Mirganj, District Gopalganj, the informant Abdul Majid (P.W. 5) was setting iron plate in his cot under the Neem tree near the house of one Lallan Mian Accused Ahmad Mian came there and gave lathi blow on his right shoulder, thereupon, Md. Anis caught hold of accused Ahmad Mian and snatched his lathi. Thereafter, accused-appellant took out one bomb from his pocket and threw it on the informant which hit the house of Anis Mian. At the same time, the wife of the informant Julekha Khatoon (P.W. 4) came there to rescue her husband but Ahmad Mian threw another bomb which caused serious injury on the left arm and rib of Julekha Khatoon wife of the informant. On hulla several persons arrived and the accused-persons fled away. The injured was removed to the hospital. The motive of the occurrence is previous enmity in between the informant and the accused. In the hospital, the fardbeyan of the informant was recorded and on its basis the case was registered. After investigation charge-sheet was submitted and after commitment the trial proceeded in the Court below. 3. The case of the defence is total denial of the occurrence and of false implication in this case. 4. The prosecution examined in all seven witnesses out of which P.W. 6 is Dr. After investigation charge-sheet was submitted and after commitment the trial proceeded in the Court below. 3. The case of the defence is total denial of the occurrence and of false implication in this case. 4. The prosecution examined in all seven witnesses out of which P.W. 6 is Dr. A.K. Suman, who stated that on 20.4.92 at 9.55 a.m., he examined Julekha Khatoon, wife of Abdul Mazid and found the following injuries on her person: (i) A badly lacerated, uneven margin with blackening of surrounding skin and carbon particles inside the wound deep to bone on lower third of upper left arm. (ii) On dissection fracture of lower third of humorous found. In the opinion of the doctor, the injuries found on the person of Julekha Khatoon were caused by explosive substance and grievous in nature. Her injuries were x-rayed and the x-ray report shows that there was fracture of lower third humorous and foreign body. 5 The informant Abdul Majid (P.W. 5) is the eye-witness of the occurrence. He supported the case as made out in the fardbeyan and stated that accused first assaulted him with lathi and thereafter, threw a bomb which hit the wall of the house of Anis Mian. In the meantime, his wife came there to rescue him, thereupon the accused threw another bomb on his wife causing grievous injuries on her left arm. He brought is wife to the hospital for treatment and his fardbeyan was recorded. P.W. 4 (Julekha Khatoon) is injured and wife of the informant. She stated that her husband was attacked by bamboo stick by accused Ahmad Mian. At that time, she was sitting near the house of Anis Mian, her neighbour. Her husband had lathi injury on his right shoulder. Anis Mian and other neighbours tried to save her husband but accused threw a bomb which hit the fencing wall. She went at the place of occurrence but accused threw another bomb causing serious injuries to her. She was removed to hospital for treatment. Thus, P.W. 4, the injured has fully corroborated the evidence of the informant (P.W. 5) on the point of occurrence. Their evidence further find corroboration from the evidence of P.W. 1 (Anis Ahmad) who is a neighbour of the informant. He deposed as an eye-witness and stated that he had seen the accused assaulting the informant by means of lathi and thereafter threw the bomb. Their evidence further find corroboration from the evidence of P.W. 1 (Anis Ahmad) who is a neighbour of the informant. He deposed as an eye-witness and stated that he had seen the accused assaulting the informant by means of lathi and thereafter threw the bomb. In his presence, the I.O. has seized the bomb splinters from the place of occurrence and prepared the seizure-list over which in his presence the witness Lallan Mian gave his L.T.I. and another witness Nabi Hassan signed over the same. He identified the signature of Nabi Hassan on the seizure-list which has been marked Ext. 1, His signature on the seizure-list is marked Ext. 1/1. In cross-examination, P.W. 1 stated that the occurrence took place because of previous enmity in between the informant and accused. P.W. 2 (Nabi Hassan) is also an eye-witness and witness on the seizure-list. He corroborated the evidence of P.Ws. 4, 5 and 1 and also stated that he put his signature on the seizure-list. P.W. 3 (Lallan Mian) was declared hostile by the prosecution but in examination-in-chief, he admitted that at the place of occurrence, he had seen the wife of the informant in injured condition. Thus, he has supported the part of the prosecution case. 6. From the scruitiny of the evidence on record and after considering the evidence discussed above, it is clear that the prosecution has been able to substantiate the charge under Sec. 307 of the I.P.C. against the accused beyond all reasonable doubt. Their evidence as stated above find corroboration from the evidence of the Doctor and his injury report which has been marked Ext. 2. These ocular evidence find corroboration from the evidence of P.W. 7 (Shailesh Sharma) who is I.O. of the case who proved the fardbeyan (Ext. 3) and the formal F.I.R. (Ext. 4). He visited the place of occurrence and found splinters of the bomb scattered there. He also found the sign of blood on the soil. He seized the splinters of the bomb in presence of the witnesses and prepared the seizure-list (Ext. 5). He searched the accused in his house but he was traceless. 7. On the facts and circumstances of the case, I come to the conclusion that there is no reason to interfere with the finding and the conclusion arrived at by the trial Court while convicting the accused-appellant under Sec. 307 of the I.P.C. 8. 5). He searched the accused in his house but he was traceless. 7. On the facts and circumstances of the case, I come to the conclusion that there is no reason to interfere with the finding and the conclusion arrived at by the trial Court while convicting the accused-appellant under Sec. 307 of the I.P.C. 8. The learned lawyer appearing on behalf of the appellant as amicus curiae submitted that the appellant is in jail custody since 9.11.1992. Thus by now, he has remained in custody for more than seven years. He was not allowed bail either by the Court below or by the High Court. Considering the facts, nature and the circumstances in which the offence was committed, a lenient view may be taken and his period of sentence of 10 years be reduced to the period already undergone. 9. Heard the learned A.P.P. and the learned lawyer appearing on behalf of the informant. 10. The alleged offence took place in the year 1992 and the petitioner has remained in custody for seven years for the offence under Sec. 307 of the I.P.C. Under these circumstances, his period of sentence is reduced to the period of sentence already undergone. The jail authority is directed to release the appellant forthwith, if not wanted in any other case. 11. With this modification in the Judgment and order of the Court below the appeal fails. 12. Miss Bela Singh, Advocate, assisted the Court as amicus curiae with her all sincerity and ability. The Legal Aid Committee of the Patna High Court is directed to pay her fees, in accordance with law. Let a copy of this Judgment be made over to her.