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2003 DIGILAW 1267 (PAT)

Maqubul Ahmad @ Maqubul Mian v. State Of Bihar

2003-12-09

CHANDRA MOHAN PRASAD, RAM NANDAN PRASAD

body2003
Judgment RAM NANDAN PRASAD and CHANDRA MOHAN PRASAD JJ. 1. These two appeals have been filed against the judgment and order dated 9.8.2000/ 10.8.2000 passed by the 2nd Additional District and Sessions Judge, Siwan in Sessions Trial No. 84 of the 1983 whereby the appellants of both the appeals have been convicted for the offence under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. The appellants of Cr. Appeal No. 407 of 2000 have been further convicted for the offence under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year each. The appellants of Cr. Appeal No. 383 of 2000 have further been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The case of the prosecution is that one Ali Akbar Mian gave his fardbeyan at Goria Kothi hospital on 3.10.1982 at 7.10 p.m. that at about 5 p.m. he was at his house. He heard alarm at the house of Najma Khatoon. He went there and found 8-10 persons of his village. Khurshid Mian was armed with bhala and the rests were armed with lathi. Khurshid Mian was abusing Najma Khatoon. Najma Khatoon was protesting. On the order of Naqui Akhtar, Khurshid Mian gave bhala blow which hit the stomach of Najma Khatoon. She fell down and intestine came out of the injury. Mohiuddin Mian tried to save but he was assaulted by Maqbool Mian and Naqui Akhtar with lathi causing injury on his person. Daood Rahman was caught by Kamruddin Mian and Gyasuddin Mian assaulted him with lahti causing injury on his person. He tried to pacify the dispute but he was assaulted by Gyasuddin with lathi causing injury on his person. When Hamida Khatoon and Khatoon Jannat tried to control the situation, Nazir Ahmad assaulted Khatoon Jannat and Shami Mian assaulted Hamida Khatoon with lathi and snatched chain from her neck worth Rs.2,700/-. Rafiullah assaulted Anwari Begum. The motive of the occurrence was that the hen of Kamruddin Mian was eating paddy and also scattered it. Najma Khatoon protested due to which there was altercation and due to the aforesaid reason the occurrence took place. The occurrence was witnessed by Ali Ahmad and Bhuteli Mian. Many people of the village also came and saw the occurrence. The motive of the occurrence was that the hen of Kamruddin Mian was eating paddy and also scattered it. Najma Khatoon protested due to which there was altercation and due to the aforesaid reason the occurrence took place. The occurrence was witnessed by Ali Ahmad and Bhuteli Mian. Many people of the village also came and saw the occurrence. The condition of Najma Khatoon was serious. She was taken to Goria Kothi Hospital along with other injured persons. Since the condition of Najma Khatoon was serious her dying declaration was recorded by the Magistrate. The doctor also referred her to Siwan hospital Najma Khatoon was pregnant. 3. On the aforesaid fardbeyan a formal First Information Report was drawn, investigation was taken up and after completion of investigation charge-sheet was submitted against eight persons. On receipt of charge-sheet cognizance was taken and the case was committed to the Court of Session for trial. During the pendency of the trial one accused Kamruddin Mian died and case of Khurshid Mian was separated because he was minor. One of the injured Daood Rahman died during the pendency of the trial and as such only six accused persons were on trial. On completion of trial Shamim Akhtar was acquitted from the charges and rest of the person i.e. the appellants were convicted as indicated above. 4. The defence of the appellants was that they were innocent and were falsely implicated in the case. Appellant, Nazir Ahmad, at the, relevant time was not in the village. He was at Calcutta. The appellant, Naqui Akhtar, at the relevant time was not in the village. He was in service at Bagaha. Appellants, Maqbool Ahmad and Rafiullah at the relevant time were also not at their house. Except appellant, Gyasuddin, all had taken plea of alibi. The further defence of the appellants was that Halima Khatoon wife of appellant, Maqbool Ahmad, had lodged a counter case with respect to same occurrence in which the witnesses including both the deceased were made accused. No occurrence as alleged took place. 5. The prosecution in support of its case examined 9 witnesses out of them PW 1, PW 3 and PW 4, are eye-witnesses to the occurrence. PW 2 claimed to be an eye-witness only with respect to assault to some of the witnesses. PW 5 is informant and is also an eye-witness to the occurrence. 5. The prosecution in support of its case examined 9 witnesses out of them PW 1, PW 3 and PW 4, are eye-witnesses to the occurrence. PW 2 claimed to be an eye-witness only with respect to assault to some of the witnesses. PW 5 is informant and is also an eye-witness to the occurrence. PW 6 is a doctor, who held post-mortem over the dead body of Najma Khatoon. PW 7 is also a doctor who held post-mortem over the dead body of Mohiuddin. PW 8 is Investigating Officer. PW 9 is a doctor, who examined the injured witnesses, PWs 2 to 5. 6. The defence also examined 8 witnesses out of them DW 1 and DW 2 produced papers in the Court. DW 4 is a doctor, who examined the informant of the counter case, Halima Khatoon. DW 6 proved complaint petition filed by Halima Khatoon. DW 8 proved discharge slip of Halima Khatoon. DW 3 proved documents, Exts. A to E to show that appellant, Naqui Akhtar, was in the office at Bagaha. DW 5 is S.D.O., Canal Division, who has been examined to show that Naqui Akhtar was in the office on the day of occurrence and proved Ext. H. DW 7 is Junior Engineer, who proved the voucher, Ext. J. 7. The occurrence is alleged to have taken place on 3.10.1982 at about 5 p.m. Jardbeyan of the injured, PW 5, was recorded at Goria Kothi hospital at 7.10 p.m. i.e. after two hours ten minutes of the occurrence. After recording the fardbeyan investigation was taken up promptly. In the incident two persons were killed i.e. Najma Khatoon, who was pregnant and Mohiuddin Mian. Najma Khatoon is said to have been assaulted with bhala by Khurshid Mian, a minor, and as such his case was separated. There is no dispute with respect to death of two persons. The dispute is with respect to participation of the appellants in the occurrence. PW 5 is informant and PW 1, PW 3 and PW 4 are eye-witnesses to the occurrence. PW 3, PW 4 and PW 5 are injured witnesses and as such their presence at the place of occurrence cannot be doubted. Learned counsel for the appellants, however, contended that they are relations of the informant and were also on litigating term and as such their evidence should not be accepted. PW 3, PW 4 and PW 5 are injured witnesses and as such their presence at the place of occurrence cannot be doubted. Learned counsel for the appellants, however, contended that they are relations of the informant and were also on litigating term and as such their evidence should not be accepted. It is well settled rule of law that evidence of such witness is not required to be thrown out outright rather the requirement is that evidence of such witness must be considered with care and caution. Keeping in mind the aforesaid well settled rule of law was proceed to examine the evidence of the witnesses on record. 8. PW 5 is informant. His evidence is that on 3.10.1982 at 5 a.m. he was at his house. He heard alarm at the house of Najma Khatoon. He went there and found 8 accused persons out of which Khurshid Mian had bhala in his hand and the rest had lathi it their hands. Khurshid Mian was abusing Najma Khatoon which was protested by her. On the order of Naqui Akhtar, Khurshid Mian gave a bhala blow, with intention to kill, on the stomach of Najma Khatoon due to which she fell down. Mohiuddin Mian tried to control the situation but he was assaulted by appellants, Naqui Akhtar and Maqbool Ahmad causing injury on the head and other parts of his body due to which he fell down. PW 3, Khatoon Jannat and PW 4, Hamida Khatoon tried to save but Shami Mian assaulted Hamida Khatoon with lathi and also snatched chain from her neck worth Rs. 2,700/- Nazir Ahmad assaulted Jannat Khatoon with lathi causing injury on her person. Daood Rahman also tried to save but he was caught by Kamruddin and Gyasuddin assaulted him with lathi PW 2, Anwari Begum, was assaulted by Rafiullah with lathi Gyasuddin assaulted him with lathi The motive of the occurrence was that the hen of Kamruddin was eating paddy and scattered it. Najma Khatoon protested on which there was altercation and subsequently occurrence took place. The witness Bhuteli is not ready to depose because he is relation of Maqbool Ahmad. All the injured were taken to Goria Kothi hospital. The condition of Najma was serious and as such dying declaration was recorded by the Magistrate. The doctor also referred her to Siwan hospital. The witness Bhuteli is not ready to depose because he is relation of Maqbool Ahmad. All the injured were taken to Goria Kothi hospital. The condition of Najma was serious and as such dying declaration was recorded by the Magistrate. The doctor also referred her to Siwan hospital. She was pregnant, Najma and Mohiuddin both were taken to Siwan hospital. Injury of Najma was bandaged at the spot and as such no blood fell on the ground. His fardbeyan was recorded by the police and he put his signature over the fardbeyan, Ext. 1. Najma died on the next day in the hospital. In cross-examination he stated that dying declaration was recorded at Goria Kothi hospital. Mohiuddin died after six days. The witness also admitted that one partition suit was going on. He also admitted that Halima lodged a counter case in which he was an accused. He also gave description of the place of occurrence i.e. varandha of the deceased, Najma Khatoon. Najma was assaulted first and thereafter other persons were assaulted. However, the witness stated that he could not say how many blows were given. The counter case filed by Halima was decided in his favour. The injury of Najma was bandaged with cloth at the spot. The appellant, Naqui Akhtar, was in service from before. The witness was cross-examined at length but nothing could be elicited to doubt his evidence. 9. PW 4 is also an eye-witness to the occurrence. Her evidence is that she was at her house. She went to the place of occurrence hearing alarm. She also stated about the motive of the occurrence as stated in the first information report. She went to the place of occurrence and saw 8 persons including the appellant, Khurshid who had bhala in his hand and the rest had lathi in their hands. Khurshid gave bhala blow to Najma Khatoon on her stomach. Najma was pregnant and it was her ninth month. The injury was bandaged with cloth by her. PW 5 was.assaulted by the appellants with lathi Naqui Akhtar had given order. She was assaulted with lathi by Shami Akhtar and he also snatched chain from the neck. PW 3, Khatoon Jannat was assaulted by Nazir Mian and also by Khurshid from the lathi portion of the bhala. Mohiuddin was assaulted by Naqui Akhtar and Maqbool Mian on the head and other parts of the body. She was assaulted with lathi by Shami Akhtar and he also snatched chain from the neck. PW 3, Khatoon Jannat was assaulted by Nazir Mian and also by Khurshid from the lathi portion of the bhala. Mohiuddin was assaulted by Naqui Akhtar and Maqbool Mian on the head and other parts of the body. Daood Rahman was caught by Kamruddin and Gyasuddin assaulted him with lathi The injured were taken to Goria Kothi hospital. There the police had recorded their statement. The condition of Najma Khatoon and Mohiuddin was serious and as such they were taken to Siwan hospital. However, both died. She was assaulted while trying to control the situation. Twenty-twenty five persons of the village including the witnesses came. The occurrence took place at the verandah of fajma Khatoon, the deceased. Her verandah and Najmas verandah is the same. Halima Khatoon had also lodged a counter case in which allegation of assault by the witnesses and the deceased persons was made. She also gave details of assault to Najma Khatoon. The injury of Najma Khatoon was bandaged with lungi Her attention was drawn with respect to the statement made before the police. 10. PW 3 is also in an eye-witness to the occurrence. Her evidence is consistent with the evidence of PWs 4 and 5 except that she did not say specific name of the persons who assaulted Mohiuddin and other witnesses but stated that Mohiuddin and other witnesses were also assaulted by the appellants. The witness also supported the motive of the occurrence. In cross-examination the witness, however, stated that after assault on her she could not see anything. She did not count how many blows were given. The injured were taken to hospital at 6 p.m. Appellant, Naqui Akhtar, was in service at Gandak Project. Halima also lodged a counter case with respect to same occurrence. The witness was cross- examined at length but nothing could be elicited to doubt the evidence. 11. PW 1 is also an eye-witness to the occurrence. His evidence is consistent with the evidence of PW 4 and PW 5 on all material points including the assault by the appellants on the deceased as well as the injured persons. The witness has categorically stated that Khurshid Mian gave bhala blow on the stomach of Najma Khatoon and intestine came out from the injury. His evidence is consistent with the evidence of PW 4 and PW 5 on all material points including the assault by the appellants on the deceased as well as the injured persons. The witness has categorically stated that Khurshid Mian gave bhala blow on the stomach of Najma Khatoon and intestine came out from the injury. Mohiuddin tried to save but he was assaulted by appellants Naqui Akhtar and Maqbool Mian. PWs 2, 3, 4 and 5 were assaulted by the appellants. Najma Khatoon and Mohiuddin Mian both died in the hospital. Mohiuddin Mian died 4-5 days after the occurrence. The witness also supported the motive of the occurrence as mentioned in the fardbeyan. In cross-examination the witness admitted about the litigation and also gave a vivid picture of the place of occurrence. The police came and also recorded his statement. He cannot say on which part injury was caused to the witnesses. The blood oozed out from the injury of Najma Knatoon but injury was bandaged with cloth at the spot. Najma Khatoon was crying. The witness also stated about the enmity. 12. It is, thus, evident from the discussion of the evidence of the witnesses that they were cross-examined at length but nothing could be elicited to doubt their evidence. Their evidence is consistent on all material points such as place of occurrence, manner of occurrence, assault by the appellants, time of occurrence and the weapon used by the appellants. 13. PW 6 is a doctor, who held postmortem over the dead body of Najma Khatoon on 4.10.1982. He found incised penetrated wound 2" x 1" x abdominal cavity deep on the left lumber region of the anterior abdominal wall. Coils of small intestine were found expelled out through the above noted abdominal wound. The abdomen was found pertuberent to the size of full term pregnancy; The injury was ante mortem caused by sharp cutting weapon, may be bhala. The death was due to shock and haemorrhage. Time elapsed since death was twelve hours. The injury found on the person of the deceased was sufficient to cause death in ordinary course of nature. 14. PW 7 is a doctor, who held postmortem over the dead body of Mohiuddin on 9.8.1982. He found seven injuries on his person. One of them was lacerated wound over occipital region. Time elapsed since death was twelve hours. The injury found on the person of the deceased was sufficient to cause death in ordinary course of nature. 14. PW 7 is a doctor, who held postmortem over the dead body of Mohiuddin on 9.8.1982. He found seven injuries on his person. One of them was lacerated wound over occipital region. Another was bruise with swelling 2" x 1/2" over he frontal region of scalp and the rest were linear fractured over the head. The injuries were grievous in nature and were caused by hard blunt substance. The injuries were sufficient to cause death in ordinary course of nature. He stated that age was within 36 hours since death. The injuries found on the person of the deceased were ante-mortem. 15. PW 9 is also a doctor, who examined the injured eye-witnesses. He found injuries on the person of the injured witnesses caused by hard blunt substance and as such their presence at the time of occurrence cannot be doubted. 16. PW 8 is Investigation Officer. His evidence is that he received O.D. slip from Goria Kothi hospital. He entered Sanha entry No. 42/82, Ex. 9. He went to the hospital and recorded the fardbeyan of the informant, PW 5, Ext. 3 and also drew formal First InformAtion Report, Ext. 4. He recorded statement of the witnesses in the hospital and also prepared injury report of the injured persons, Ext. 5 to 5/5. Mohiuddin was not in sense. He inspected the place of occurrence and gave vivid pic- ture of the place of occurrence. He found paddy scattered at the place of occurrence. On 5.10.1982 also Mohiuddin was sense- less. Najma Khatoon died and such inquest report was prepared, Ext. 6. He received dying declaration of Najma Khatoon, Ext. 8. He also received injury report of the injured. However, Mohiuddin died and he prepared inquest report 6/1.He did not find blood at the place of occurrence. In cross-examination the witness stated that on the order of higher officer he called an explanation from the doctor with respect to nis opinion that the age of the injuries was within 36 hours. He also made enquiry with respect of alibi of Shami Akhtar and Naqui Akhtar. In cross-examination the witness stated that on the order of higher officer he called an explanation from the doctor with respect to nis opinion that the age of the injuries was within 36 hours. He also made enquiry with respect of alibi of Shami Akhtar and Naqui Akhtar. He admitted that he did not prepare map of the place of occurrence and also that Najma Khatoon did not name Maqbool, Gyasuddin, Shami Akhtar, Naqui Akhtar, Nazir Mian, Rafiullah and Kamruddin. He, however, stated that Ali Ahmad, PW 1, did not say before him that KaMruddin was caught by Daood Rahman and Shami Akhtar snatched chain from the neck of Hamida. He also did not say that Gyasuddin assaulted on the head of Ali Akbar, PW 5. Khatoon Jannat, PW 3, did not say before him that she was assaulted by Nazir. Hamida Khatoon, PW 4, did not say before him that Ali Akbar was assaulted by Gyasuddin with lathi. She also did not say that Khurshid assaulted Khatoon Jannat from the lathi portion of the bhala. The informant, PW 5, had stated before him that the injury of Najma was bandaged with cloth by Hamida Khatoon, PW 4. He proved Sanha Entry No. 9. 17. It is, thus, evident from the discussion of the evidence of the witnesses that the evidence of the eye-witnesses is consistent on all material points such as assault, manner of occurrence and the weapons used in the occurrence. The oral evidence is also corroborated by the evidence of the doctors, PW 6, PW 7 and PW 9. The evidence of the Investigating Officer also corroborates the oral evidence and the prosecution case. Thus, we find no reason to disbelieve the evidence of the witnesses who were either relation or enimical to the informant or the appellants. 18. It is to be noted that the defence has also examined witnesses in support of alibi. However, no evidence has been led with respect of alibi of Maqbool, Nazir and Rafiullah. There is no defence of alibi of Gyasuddin. The evidence has been led only with respect to alibi of Naqui Akhtar. DW 1 and DW 2 only produced " the relevant papers. DW 3 is Senior Accounts Clerk. He proved the certificate, Ext. A letter dated 6.11.1982, Ext. B, attendance register, Ext. C and signature of S.D.O. over it Ext. There is no defence of alibi of Gyasuddin. The evidence has been led only with respect to alibi of Naqui Akhtar. DW 1 and DW 2 only produced " the relevant papers. DW 3 is Senior Accounts Clerk. He proved the certificate, Ext. A letter dated 6.11.1982, Ext. B, attendance register, Ext. C and signature of S.D.O. over it Ext. D, Cash Book dated 3.10.1982 and 4.10.1982, Ext. E to show that appellant Naqui Akhtar was present in the office at Bagaha on the day of occurrence. It has been admitted by the witness that the attendance register dated 3.10.1982 neither bears the signature of the S.D.O. nor there is evidence that the S.D.O. checked the attendance register of that date. The witness also stated that normally on holiday the office remains closed. It has further been stated that the certificate was granted on the basis of attendance register. He did not say that cheques issued were presented in the bank. DW 5 is the S.D.O. himself. He has been examined to say that Naqui Akhtar was in service and he was present on the day of occurrence in the office. He proved the writing over the certificate, Ext. G and also voucher dated 3.10.1982, Ext. H. The witness, however, stated in cross- examination that at his instance Ext. G was prepared. He also stated that during flood time office remained closed. Office also remains closed on Sunday. He did not remember the name of the persons who received payment. He further stated that Ext. A does not disclosed the reason for issue of the order. PW 7 is Junior Engineer. He proved the voucher dated 3.10.1982, Ext. J. In cross-examination the witness stated that on Sunday he prepared estimate. On Sunday he used to do file work at his residence and office remains closed. The voucher was not produced before the police. From the evidence of DWs. it is evident that no witness stated about time of marking attendance or leaving the office. Obviously, the occurrence took place at 5 p.m. No evidence has come that appellant, Naqui Akhtar was also at 5 p.m. in the office. The voucher was not produced before the police. From the evidence of DWs. it is evident that no witness stated about time of marking attendance or leaving the office. Obviously, the occurrence took place at 5 p.m. No evidence has come that appellant, Naqui Akhtar was also at 5 p.m. in the office. Moreover, it has been stated by the learned counsel for the State that distance between the place of occurrence and the office at Bagaha is not very long and it is connected with road, however, no witness has stated about the distance between the place of occurrence and the office at Bagaha. The occurrence took place at 5 p.m. A person in service and work not at a great distance may come and commit offence. If such defence is taken the burden is on such person to prove his alibi beyond all reasonable doubts. It appears that no such evidence has been brought on the record. Moreover, plea of alibi is a very weak evidence. Thus, it appears to us that the trial Court has rightly rejected the plea of alibi of the appellant, Naqui Akhtar. 19. Learned counsel for the appellants submitted that Ext. 8 is dying declaration of Najma Khatoon, the deceased. Her dying declaration was recorded at Goria Kothi hospital by a Magistrate. She did not name any of the appellants. She named only Khurshid Mian as her assailant. Thus, the dying declaration belies the prosecution case with respect to the appellants. The submission no doubt appear to be attractive but it has got no substances at all. The case of the prosecution itself is that there was hue and cry at the door of the Najma Khatoon. Khurshid Mian gave bhala blow on her stomach. Intestine buldged out from the injury and she fell down. The evidence of the eye-witnesses is also consistent to the aforesaid effect. It is, thus, evident that she received injury first and she died on the next day of the occurrence. After such injury it is not expected that she would name others because she must not have been in fit mental condition to see the other part of the occurrence. The specific evidence of the witnesses is that after assault to her when the people tried to control the situation they including Mohiuddin were assaulted. After such injury it is not expected that she would name others because she must not have been in fit mental condition to see the other part of the occurrence. The specific evidence of the witnesses is that after assault to her when the people tried to control the situation they including Mohiuddin were assaulted. Thus, on consideration we find no substance in the submission of the learned counsel for the appellants. 20. Learned counsel for the appellants next pointed out that evidence of the doctor, PW, 7, who held post-mortem over the dead body of Mohiuddin falsifies the prosecution case as the doctor has found injuries on the person of the deceased of the age within 36 hours since death, if it is accepted then the occurrence should have taken place on 7.10.1982 whereas according to the prosecution the occurrence took place on 3.10.1982. The submission, in fact, has no substance. It is to be noticed that PW 7 held postmortem over the dead body and did not examine the injured. In case of post-mortem normally the doctor says time elapsed since death and there is no question of giving age of the injury. A person may have been injured much prior to his death then the doctor holding postmortem cannot give the age of the injury. Moreover, it appears that.the learned counsel for the appellants has misconceived the evidence. The doctor, PW 7, stated the "age within 36 hours since death." It does not mention that the "injuries" found on the person of the deceased were within 36 hours since death. If word injuries is substituted though it is not mentioned, then it can be said opinion of the doctor is with respect to age of the injuries, but in criminal law there is no question of substitution of any word to come to a conclusion. It has to be considered as it is. There is nothing to show that the doctor has stated that the age of injury found on the person of the deceased was 36 hours since death. Moreover, well settled rule of law is that if occular evidence is consistent and worthy of reliance the medical evidence can safely be ignored. In the instant case we have found the oral evidence consistent on all material points and is worthy of reliance. Moreover, well settled rule of law is that if occular evidence is consistent and worthy of reliance the medical evidence can safely be ignored. In the instant case we have found the oral evidence consistent on all material points and is worthy of reliance. Thus, on consideration we find no substance in the submission of the learned counsel for the appellants. 21. Learned counsel for the appellants further submitted that there is evidence on the record with respect to appellants of Cr. Appeal 407 of 2000 that they did not even touch the body of the deceased. They have been convicted for the offence under Sections 147 and 323 of the Indian Penal Code and have remained in jail for more than one month and as such they deserve to be acquitted. It appears that appellant, Gyasuddin, Nazir Ahmad and Rafiullah of Cr. Appeal No. 407 of 2000 have been convicted for the offence under Sections 147 and 323 of the Indian Penal Code. The allegation is that these appellants assaulted the injured witnesses. The doctor examined the injured and the injuries were found to be simple in nature. Moreover, the case is of the year 1982 and they have been fighting the litigation for more than twenty years. In such a situation we find substance in the submission of the learned counsel for the appellants. Accordingly, their conviction is maintained. However, the sentence is reduced to the period already undergone. 22. Thus, on consideration we find no merit in these appeals. Accordingly, both the appeals are dismissed with modification in sentence as indicated above. Appeal dismissed with modification.