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2001 DIGILAW 860 (PAT)

Mohammad Iliyas v. State Of Bihar

2001-09-12

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The appellant Md. Iliyas was convicted and sentenced to undergo rigorous imprisonment for two years, seven years and two years respectively under Sections 148, 307 & 324 of the Indian Penal Code (hereinafter to be referred to as the Code), the appellant Abdul Halim was convicted and sentenced to undergo rigorous imprisonment for seven years, two years and seven years respectively under Sections 307, 148 & 326 of the Code and the appellants Israel Shah, Md. Bhullah, Hare Ram Rai, Nayeem Mian, Shamim Mian, Bhola Rai, Mahavir Yadav and Domi Rai were convicted and sentenced to undergo rigorous imprisonment for seven years each and one year each respectively under Sections 307/149 & 147 of the Code vide the judgment and order dated 5.4.1990 passed by Sri Bal Govind Prasad, III, Additional Sessions Judge, Saharsa in sessions trial November 25 of 1984. 2. It would be relevant and convenient to reproduce, in brief, the facts of the case. The informant Mazloom Mian (PW 1) on 12.3.1983 went to the house of Jagdhar Yadav for obtaining some loan from him. As he was not available at his house the informant set out for his home. On way to his house he happened to see Md. Jainul (PW 3) who was returning home from Nawhatta market with kerosene, oil which he had purchased there. Both PW 1 and PW 3 proceeded to their village home. No sooner had they arrived at the place of occurrence situated on the eastern bank of the river Chanan than the appellant and some other unknown miscreants who were all armed with various lethal weapons intercepted and surrounded them. The appellant Mahavir Yadav ordered and instigated the miscreants including the appellants to kill both PW 1 and PW 2 saying that they were men of Md. Phul Hassan. In pursuance of his order and instigation the appellant Md. Iliyas triggered off arrow hiting the head of the informant as a result of which he sustained injury and the appellant Israel Shah and Kamleshwar Yadav (since dead) assaulted him with lathi The appellant Abdul Halim also shot arrow as a result of which PW 3 sustained injury on right side of his abdomen. PW 2 Bashir Ahmad and PW 5 Md. Salim rushed to save them but they were also assaulted by the appellants Md. PW 2 Bashir Ahmad and PW 5 Md. Salim rushed to save them but they were also assaulted by the appellants Md. Bhulla and Hare Ram Rai with lathi PW 5 Salim Mian also sustained arrow injury on his abdomen at the hand of the appellant Md. Israel. Modi Yadav, Badri Rai (PW 10), Dharmraj Yadav (PW 6), Abdul Rahim (PW 7) and others arrived at the scene of occurrence and they witnessed the incident leading to assault on the victims. 3. The motive attributed behind the highhanded and illegal act of the appellants was that there had been dispute and quarrel between Md. Usman who was the local Mukhiya and Md. Ful Hassan for quite sometime and both of them had been making allegation and counter allegation against each other and the victims, PWs 1, 2, 3 & 5 belonged to the group of Md. Ful Hassan and they used to assist him whereas the appellants were men of the camp of Mukhiya Md. Usman. 4. The incident referred to above took place at about 2.00 p.m. The informant lodged the FIR (Ext. 1) at about 5.30 p.m. on the same day. On the basis of Exhibit 1 Nawhatta PS case No. 30/83 giving rise to the instant case was registered. Investigation was taken up by PW 11 Srikrishna Rai. After recording the statement of the informant he saw injuries on the persons of the victims and he issued injury slips and sent the victims along with the injury slips to the hospital for their examination and treatment. He inspected the place of occurrence and recorded the statements of the witnesses and after completing investigation he submitted the charge-sheet and finally the trial commenced after commitment. 5. He inspected the place of occurrence and recorded the statements of the witnesses and after completing investigation he submitted the charge-sheet and finally the trial commenced after commitment. 5. The appellants entered into defence and they examined defence witnesses, such as, Akhilesh Choudhary (DW 1), Jahir Alam (DW 2), Shiv Nandan Yadav (DW 3), Ram Udgar Paswan (DW 4), Jivkant Mishra (DW 5) and Upendra Jha (DW 6), They filed certain documents which were Exhibits A, A/A, B, C, D, D/C, E & E/A & F. From the trend of cross-examination of the prosecution witnesses and the evidence of defence witnesses and the documents brought on records on behalf of the appellants the defence seemed to be that no incident took place at the time and place and in the manner alleged by the prosecution and as a matter of fact the prosecution party looted away Khesari crops from the fileds of Shadir and the miscreants lobbed bombs there and the present case was counter-blast to that case. It was pleaded that the land from which the Khesari crops were looted away by the prosecution party belonged to and was in possession of Shadir, Md. Usman and others for which G.R. Case No. 288/83 was registered at the instance of Shadir on intervention of the Superintendent of Police as officer-in-charge of the local police station had refused to register the case and the instant case Was instituted by way of counter-blast to that case. The appellants Mahavir Yadav and Md. Halim also took the plea of Ali Bi by contending that on the date of occurrence they were out of the district. 6. The learned Additional Sessions Judge after taking the facts, circumstances and evidence brought on records into account and found and held the appellants guilty and he convicted and sentenced them as stated above vide the impugned judgment and order. 7. Aggrieved by the judgment and order of conviction and sentence recorded against them the appellants preferred the instant appeal. 6. The learned Additional Sessions Judge after taking the facts, circumstances and evidence brought on records into account and found and held the appellants guilty and he convicted and sentenced them as stated above vide the impugned judgment and order. 7. Aggrieved by the judgment and order of conviction and sentence recorded against them the appellants preferred the instant appeal. They assailed the impugned judgment and order of conviction and sentence by contending that it was not based on law and facts rather it was based on mere surmises and conjectures; that the prosecution instead of examining independent villagers examined only relatives and interested witnesses and no conviction ought to have been based on their evidence; that the eyewitness account of the incident leading to assault on the victims was not in consonance with medical evidence; that the place of occurrence could not be established and that the evidence of the witnesses was inconsistent and contradictory. 8. It is to be stated at the very outset that there was case and counter-case between the parties and at latter stage they entered into compromise and they filed petition of compromise in both the cases and the case (G.R. No. 288/83) lodged by Shadir against the prosecution party was compounded as the offences were compoundable and the leaned Additional Sessions Judge also allowed compounding in respect of bailable offences but he did not accord permission for compounding the offence under Section 324 of the Code. The offence under Section 307 read with Section 149 was not compoundable. Under the circumstance, the compromise petition in respect of non-compoundable offences was rejected and the appellants were convicted and sentenced as already indicated. 9. It was vehemently urged that the place of occurrence could not be established by the prosecution inasmuch as it was averred in the FIR that the incident took place on the eastern bank of the river Chanan but the informant (PW 1) stated that the occurrence took place about thirty Karis west of the house of Jagdhar Yadav whereas PW 2, Bashir Ahmad stated that the house of Jaghdar Yadav situated one Kilometer east of the Chanan river. If the statement of PW 2 regarding distance between the house of Jagdhar Yadav in the place of occurrence was accepted the occurrence could not be said to have taken place on the eastern bank of river. If the statement of PW 2 regarding distance between the house of Jagdhar Yadav in the place of occurrence was accepted the occurrence could not be said to have taken place on the eastern bank of river. The Investigating Officer (PW 11) did npt prepare sketch map of the place of occurrence nor did he find out Khata number and plot number of the place of incident. Under the circumstance, the contention that the place of occurrence could not be established beyond the reasonable doubt seems to be pregnant with meaning and substance. 10. PW 1 Majloom Mian, the informant, PW 3, Md. Jainul and PW 5 Md. Salim were said to have sustained injuries caused by arrow and lathi Dr. Lal Prasad Singh (PW 12) who examined the injured persons found as many as four incised injuries on the person of the informant Majloom Mian. The injuries were in the opinion of the doctor caused by sharp cutting weapon such as farsa but the crux of the matter is that no farsa or garasa was used as weapon for infliction of assault. The injury caused by arrow will cause of penetrating injury but surprisingly enough no penetrating injury was found on the person of the informant. Again the doctor found one incised wound and certain abrasions and swellings on the person of PW 2 Bashir Ahmad. The incised injury found on the person of PW 2 Bashir Ahmad also remained unexplained as to how it was caused when none of the appellants who were said to be assailants was armed with sharp cutting weapon, such as, farsa or garasa PW 12 did find a penetrating wound on the person of PW 2 Md. Jainul and he referred him to Saharsa Hospital wherefrom he was sent to D.M.C.H., Darbhanga. His injury might have been caused by arrow. PWs 1, 2 & 3 were examined by the doctor on 12.3.1983. during hours 4.154.45 p.m. PW 5, Md. Salim was examined by PW 12 at about 4 p.m. on 15.3.1983. The doctor found a simple abrasion on his person though the prosecution case was that he had sustained injury caused by arrow and the author of that injury was the appellant Md. Iliyas. during hours 4.154.45 p.m. PW 5, Md. Salim was examined by PW 12 at about 4 p.m. on 15.3.1983. The doctor found a simple abrasion on his person though the prosecution case was that he had sustained injury caused by arrow and the author of that injury was the appellant Md. Iliyas. PW 5 could have explained the discrepancy in occular evidence and medical evidence in regard to injury on his person but instead of examining him the prosecution simply tendered him. Thus, obviously eye-witness account of assault was not consistent with the medical evidence save and accept in respect of PW 3 Md. Jainul. 11. Apart inconsistency in medical evidence and occular evidence referred to above there is still one another glarring discrepancy in the time of examining of the injured persons and the time when the injured were said to have been referred to the doctor by the Investigating Officer. After recording the statement of the informant on the basis of which the instant case was registered at about 5.30 p.m. on 12.3.1983 the Investigating Officer (PW 11) sent the victims, i.e., PWs 1, 2 & 3 along with injury slips made by him to the hospital. The time of the registration of the case as given in the FIR is 5.30 p.m. on 12.3.1983. Though the victims were present at the police station till 5.30 p.m. and thereafter they were sent to the hospital, surprisingly enough the doctor (PW 12) claimed to have examined them at about 4.15 p.m., 4.30 p.m. & 4.45 p.m. It does not stand to reason as to how the injured persons were examined and issued injury reports before the FIR was lodged and they were forwarded to the doctor by the I.O. (PW 11). This discrepancy in the timing renders the case suspicious. The learned counsel for the appellants contended that the fact that the injured were examined over an hour prior to lodging of the FIR or their being forwarded to the doctor by the I.O. must give rise to an inference that the prosecution party had already made up its mind to implicate the appellants by procuring the injury reports in respect of the aforesaid injured persons. Be that as it may, the discrepancy in the time of examination of the injured persons by the doctor and the time of their being sent to the doctor must be said to have at least instilled suspicion in the prosecution version. 12. From the materials on records it would transpire that all the prosecution witnesses were either related to each other or interested in the victims and they all belonged to the camp of Ful Hassan while the appellants had allegiance to the group of Md. Usman and both the groups had been at daggers drawn and they were involved in long drawn land dispute. The Investigating Officer (PW 11) also stated that the prosecution party had purchased certain land which has been in possession of Md. Usman, Shahir and others on account of which there existed animosity between the two groups. No independent villager given though a number of persons of the village had arrived at the scene of occurrence was examined by the prosecution nor was there any explanation for their non-examination. The evidence of prosecution witnesses who were relatives and interested ones was not corroborated by any independent witness. Besides, there also occurred discrepancies and contradictions in the statements of the witnesses as would be evident from the evidence of the Investigating Officer (PW 11). Attention of the witnesses was drawn to their previous statements recorded under Section 161, Cr PC. The Investigating Officer (PW 9) contradicted their statements. 13. One of the miscreants was said to have been in possession of bomb. None of the witnesses stated that bomb was exploded. Despite that the Investigating Officer claimed to have seized splinters of bomb from the place of occurrence. It does not stand to reason as to how bomb splinters were found lying at the place of occurrence when no bomb was lobbed there. None of the witnesses stated that bomb was exploded. Despite that the Investigating Officer claimed to have seized splinters of bomb from the place of occurrence. It does not stand to reason as to how bomb splinters were found lying at the place of occurrence when no bomb was lobbed there. The learned counsel appearing on behalf of the appellants vehemently urged that the members of the prosecution party by taking law and order in their own hands went to the land of the aforesaid Sahir and they scared Shahir and his men by exploding bombs and threatened them with dire consequences if they protested against their operation and they looted away his Khesari crops and the Investigating Officer picked up splinters of bombs from the filed of the aforesaid Shahir and he showed the same to have been seized from the place of occurrence in the present case. Irrespective of the merit of the contention put forward by the counsel, it can be stated that the alleged seizure of splinters of bomb from the place of occurrence is not in consonance with the prosecution version and the statement of the Investigating Officer on this point does not inspire confidence and the same can not be accepted. 14. Even assuming the prosecution case that the injured persons were intercepted, surrounded, attacked and assaulted by the appellants the latter did not in the facts and circumstances attending to the case seem to have intention to kill the victims. The prosecution case was that the appellants and other accused persons numbering over a dozen having armed themselves with arrow bow, bombs and lathi surrounded PW 1 and PW 3 and they triggred off arrow on them. As already stated above all the injuries on all the injured persons excepting a solitary injury found on the person of PW 3 were simple in nature. The injury on the person of PW 3 was said to be dangerous to life by PW 9, Dr. Azad Hind Prasad of D.M.C.H., Darbhanga and hence it was said to be grievous in nature. Had the appellants mens rea to do away with PW 1 and PW 3 they would have easily done so by catching hold of them and putting end to their lives with arrow or by exploding bomb on them. Azad Hind Prasad of D.M.C.H., Darbhanga and hence it was said to be grievous in nature. Had the appellants mens rea to do away with PW 1 and PW 3 they would have easily done so by catching hold of them and putting end to their lives with arrow or by exploding bomb on them. The materials on records do not show that the appellants had any intention to kill injured persons. The ingredients of Section 307 of the Code cannot be said to have been established. The materials on records could at best render the appellants liable under Sections 324 & 323 of the Code. 15. A few words on defence version the appellants set-up defence. From the trend of cross-examination of the prosecution witnesses and the evidences of offence witnesses (DWs 1 to 5) and various documents brought on records on their behalf the defence seemed to be that the prosecution party was aggressor and the prosecution party which had illegally uprooted and looted away Khesari crops of Shahir for which G.R. Case No. 283/83 was instituted and the instant case was counter-blast to that case. From the evidence of the prosecution witnesses also it would transpire that both the parties were locked up in severe land dispute and the prosecution witnesses and the appellants belonged to two Warring factions of the village. 16. It is to be borne in mind that the incident took place in the year 1983 and since then the appellants have been running to courts and, thus, they have obviously been already put to tremendous harassment and mental agony and besides, they have also suffered rigour of jail life during their incarceration for a few months during the investigation. 17. The merit of the instant case is to be judged in the perspective of the compromise petition filed on behalf of the parties. As already observed, the case lodged by Shahir was already compounded. The permission to compound the case may also well be accorded in the instant case. In the case of Pappu and others V/s. The State of Punjab, AIR 2000 SC 3633 (2) some of the appellants were convicted under Section 307 of the Code and others under Section 307 read with Section 149 of the Code and they were sentenced to suffer rigorous imprisonment for three years for the offence under Section 307 of the Code. The appellants and the main prosecution witnesses who were injured in the incident were close relatives and they later on settled their disputes and their relations became cordial. Under the circumstance, the Hon ble Supreme Court reduced the sentence of the appellants to the period already undergone by them. In the instant case also the appellants had remained in jail custody for a few months. However, in view the facts, and circumstances and evidence discussed and the observations made in the preceding paragraphs the appellants before this court seem to be entitled to get benefit of doubt. 18. For the reasons stated above, the appeal is allowed and the impugned judgment and order of conviction and sentence is set- aside. The appellants stood acquitted and discharged from the liability of their respective bail bonds.