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2002 DIGILAW 358 (PAT)

Mustaque Ali v. State Of Bihar

2002-03-15

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. The appellants suffered conviction under sections 323/34 and 341 of the Indian Penal Code (IPC) and while they were sentenced to suffer rigorous imprisonment for a term of one year on the first count, no sentence was recorded on the second count. Mustaque Ali suffered conviction under section 325 IPC and was sentenced to suffer rigorous imprisonment for a term of three years and Manzoor Ali suffered conviction under section 323 IPC and was sentenced to suffer rigorous imprisonment for a term of one year. However, sentences were directed to run concurrently. 2. The factual matrix.While Subhash Mehta (P.W. 7) was counting bamboos, allegedly sold to Sajjanlal Yadav, he noticed shortage of 15 number of bamboos and, on inquiry, he found one number of bamboo at the house of Nazir Ali and two number of bamboos in the paddy field of Liyakat Ali and he allegedly restored to them to his store, pursuant to which it is alleged that the appellants came to him and took him to task for removal of bamboos from their custody and it is alleged that on exhortation made by Mazid Ali, Nazir fell him on the bamboos and pressed his neck. It was alleged that Manzoor Ali dealt blows with hard and blunt substance on his buttock and for Mustaque Ali, it was alleged that he twisted his thumb and pulled his hands towards back side and with these accusations, prosecution was launched against the appellants on behest of Subhash Mehta, pursuat to which investigation commenced. In course of investigation, the Police recorded statement of witnesses under section 161 of the Code of Criminal Procedure, visisted the place of occurrence, got the injured clinically examined by the doctor and, on conclusion of investigation, laid chargesheet before the Court. In the eventual trial, that commenced, the State examined altogether 10 witnesses including the injured and host of witnesses including some formal witnesses and also the doctor who stated to have examined the injuries on the person of Subhash Mehta. 3. In the eventual trial, that commenced, the State examined altogether 10 witnesses including the injured and host of witnesses including some formal witnesses and also the doctor who stated to have examined the injuries on the person of Subhash Mehta. 3. The defence of the appellants before the trial court and also this Court had been plain denial of the entire allegations and they ascribed their false implication due to dispute with regard to some passage for exit of female members from the house and the trial court placing implicit reliance on the testimony of the witnesses and having negatived the contentions raised at Bar on behalf of the appellants, found them guilty and sentenced them in the manner stated above. 4. Propriety of the findings, recorded by the court below, was sought to be assailed by the learned counsel for the appellants and it is urged that though the doctor, who examined Subhash Mehta, found dislocation in the thumb and came to the conclusion about the injuries to be grievous in nature, it was quite unnatural that without there being examination of the injury by deep x-ray, the doctor would rush to such a conclusion. Contentions are raised that though the theft of bamboos from the stock of Subhash Mehta was shown to be the genesis of the incident, no cogent and clinching evidence was ever brought on the record by the State on this score and hence, it is urged that the entire prosecution case has to be thrown over board. Contentions are raised that though the theft of bamboos from the stock of Subhash Mehta was shown to be the genesis of the incident, no cogent and clinching evidence was ever brought on the record by the State on this score and hence, it is urged that the entire prosecution case has to be thrown over board. The manner of occurrence to be at variance in the testimony of the witnesses was also taken to be a ground to assail the credibility of the witnesses and the last argument canvassed on behalf of the appellants was that though the prosecution was launched in the year 1983, the appellants have suffered the ordeal of protracted trial for about 19 years and with the aid of the statement of the appellants recorded by the court below under section 313 of the Code of Criminal Procedure, it is urged that Mazid Ali and Nazir Ali were aged about 65 and 55 years respectively, in the year 1991 when they were examined by the Court and by that time there must be addition of ten years in their age and on these premises, it is urged that ends of justice would be met, if these mitigating circumstances were taken into consideration while imposing sentence on them, if the appellants are found guilty of charges. The contention raised at Bar were resisted by the learned counsel for the State. 5. While evaluating the testimony of witnesses, it is found that while Subhash Mehta (P.W. 7) was stamped witness, those who claimed to be ocular witnesses of the incident, include Harku Rishideo (P.W. 3), Sajjan Yadav (P.W. 4), Gajendra Mehta (P.W. 5) and Resham Mehta (P.W. 6). The incident was shown to have been witnessed by Resham Mehta, Gazendra Mehta and Rishideo and Ramji Mehta and three of them have been examined by the State. The accusation attributed to Mazid was about exhorting others for assaulting Subhash and on this point, there had been evidence of P.Ws. 5, 6 and 7 and accusation attributed to Nazir Ali was about felling Subhash on the bamboos and pressing his neck and on this point there has been evidence of P.Ws. 3, 5, 6 and 7. Manzoor Ali was saddled with the allegation of giving blows with hard and blunt substance on the buttock of Subhash and there has been evidence of P.Ws. 3, 5, 6 and 7. Manzoor Ali was saddled with the allegation of giving blows with hard and blunt substance on the buttock of Subhash and there has been evidence of P.Ws. 5 and 7 and as for Mustaque Ali, he was saddled with the allegation of twisting thumb of Subhash Mehta. There has been positive evidence of RWs. 3, 5, 6 and 7 and the doctor who examined the injured and found corresponding injuries on his person. 6. Lot of arguments were canvassed at Bar about the genesis of the incident having not been established by The State by cogent evidence. There has been evidence of not only Subhash Mehta, about theft of bamboos, but there has been also evidence of Sajjan Yadav (P.W. 4) who was purchaser of bamboos. However, there are some disturbing features of the prosecution case. Subhash Mehta states to have suffered injuries on his back and head due to fall on the bamboos at the instance of Nazir Ali but, admittedly, there was no corresponding finding of the doctor. Be that as it may, thrust of the allegation against Nazir and Manzoor was about pressing the neck of Subhash Mehta and twisting his thumb and, as has been stated, there has been corresponding finding of the doctor on these premises. As the Police Officer was not examined at trial, admittedly objective finding recorded by him could not be placed on the record but that would not prejudice the appellants. Though the doctor found thumb of Subhash Mehta dislocated, admittedly, the injured was not subjected to X-ray examination and it seems that the doctor only obsessed with the visual appearance, rushed to the conclusion about the injury to be grievous in nature and the findings recorded by the trial court, which was not based on evidence of the ocular witnesses about there being any fracture on fhe thumb of Subhash Mehta, did not appear to be based on sound reasoning which was expected of him and in this view of the matter, I feel persuaded to convert the conviction of Mustaque Ali under section 323 IPC and he is accordingly convicted under that Section. Since explicit accusations were attributed to Nazir Ali, he is found guilty under section 323 IPC simpliciter and as for Manzoor Ali, who was saddled with the accusation of exhorting his associates, without there being any explicit accusation about committing overt act with regard to assault on Subhash Mehta, is found guilty under section 323/109 IPC. The finding recorded by the trial court against appellant Majid Ali under section 323 IPC is also upheld. However, regard being had to the submissions canvassed at Bar that the appellants suffered ordeal of protracted prosecution for about 19 years, and two of them are sufficiently old, while setting aside the sentence awarded to them, they are sentenced to pay a fine of Rs. 500/- (five hundred) each, in default of which, they would suffer rigorous imprisonment for five months and with this modification, this appeal is dismissed. The amount of fine must be deposited in the trial court within two months of the receipt/production of a copy of this order and half of the fine, so realised shall be payable to the injured or his successor in case the former is not alive.