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2003 DIGILAW 875 (JHR)

Bakar Ali Mian v. State of Bihar now Jharkhand

2003-07-22

D.N.PRASAD, H.S.PRASAD

body2003
Judgment Deoki Nandan Prasad, J.-All the appellants preferred this appeal against the judgment of conviction dated 11.1.1996 and order of sentence dated 16.1.1996 passed by 4th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 34 of 1986, whereby and whereunder the learned Trial court convicted all the appellants under sections 447 and 302/149 of the Indian Penal Code and also convicted the appellants Puttu Mian, Mazhar Mian, Jama Mian and Bakar Ali Mian under section 148 of the Indian Penal Code and the remaining appellants were convicted under section 147 of the Indian Penal Code, whereas appellant Subhani Mian was further convicted under section 323 of the Indian Penal Code. All the appellants were sentenced to undergo rigorous imprisonment for life under section 302/149 of the Indian Penal Code and rigorous imprisonment for three months each under section 447 of the Indian Penal Code whereas the above four appellants were sentenced to under rigorous imprisonment for three years under section 148 of the Indian Penal Code and two years for the offence under section 147 of the Indian Penal Code whereas appellant Subhani Mian was further ordered to undergo rigorous imprisonment for six months under section 323 of the Indian Penal Code. However, all the sentences were ordered to run concurrently. 2. The prosecution case briefly stated is that one Sultan Mian gave his fard beyan alleging therein that on 9.11.1985 at 6 A.M., he along with his brother Rahamatullah Mian was ploughing his field situated on the west of the village and his father Kabir Mian was sitting on the ridge of the said field. All the appellants along with one Lokman Mian (now dead) armed with various weapons, such as, Garasa, Bhala and Lathi came there and appellant Bakar Ali Mian ordered to assault as they are ploughing his land. Thereafter appellant Putu Mian gave garasa blow to the father of the informant, which hit on his head and thereafter he fell down. It is further alleged that appellant Mazahar Mian gave garasa blow on Rahamatullah Mian but it could not hit him, as he fled away, whereas the appellant Subhani Mian assaulted the informant with lathi. The informant raised alarm and then the villagers, namely, Hasim Khan, Lalji Mian and Jahangir Mian came there and thereafter all the accused/appellants fled away. It is further alleged that appellant Mazahar Mian gave garasa blow on Rahamatullah Mian but it could not hit him, as he fled away, whereas the appellant Subhani Mian assaulted the informant with lathi. The informant raised alarm and then the villagers, namely, Hasim Khan, Lalji Mian and Jahangir Mian came there and thereafter all the accused/appellants fled away. The cause of occurrence is said to be the land dispute in between the parties from before. The injured was taken to• Hospital where the father of the informant Kabir Mian died. 3. On the basis of the fard beyan, a first information report was registered against all the appellants for the offence under sections 307, 324, 323, 447, 149 and 148 of the Indian Penal Code but Section 302 of the Indian Penal Code was added later on as the father of the informant died in the Hospital. The police investigated into the case and submitted charge sheet against all the accused persons. The witnesses were examined during trial and after hearing both sides; the learned Trial court convicted and sentenced the appellants in the manner as stated above by the judgment impugned, which is under challenge in this appeal. 4. At the very outset, it may be noted that one supplementary affidavit has been filed on behalf of the appellants claiming therein that appellants Rashid Mian and Subhani Mian died on 16.8.1999 and 24.12.2000. Hence the appeal as against them is abated. 5. On bare perusal of the fard beyan it is obvious that the appellant Putu Mian gave farsa blow on the head of Kabir Mian resulting his death. It is also alleged that Putu Mian gave farsa blow at the instance of appellan7 Bakar Ali Mian who ordered to do away the life on the pretext that they are ploughing his land. There is also allegation that Subhani Mian assaulted the informant Sultan Mian with lathi. Reason behind the occurrence has been narrated that because there is a land dispute the accused persons assaulted in the manner as alleged. 6. Now let us examine as to how far the prosecution has been able to establish its charges against the appellants beyond all reasonable doubts. Obviously there is no specific or direct allegation against the other appellants except Putu Mian, Mazahar Mian and Bakar Ali Mian for committing overt act. 6. Now let us examine as to how far the prosecution has been able to establish its charges against the appellants beyond all reasonable doubts. Obviously there is no specific or direct allegation against the other appellants except Putu Mian, Mazahar Mian and Bakar Ali Mian for committing overt act. In this respect; I may mention here that though the informant Sultan Mian claimed to have been examined by the Doctor in the Hospital after assault but surprisingly to note that no any injury report has been brought on the record nor any Doctor has been examined to this effect that he actually sustained any injury caused by hard blunt substance. 7. Nine witnesses have been examined on behalf of the prosecution in its support, of whom P.Ws. 5 7 and 8 are formal witnesses. P.Ws. 4 is the Doctor who held post mortem on the dead body of Kabir Ansari and found the following ante mortem injuries on his person:- (A) Bruise over the left upper eyelid. (B) Bruise 2" x 1/4" over back on the left side above left buttock. (C) Bruise 1" x 1/2" over right cheek about 1" below right eye. (D) One stitched wound 1" in length over voult of head on left side situated about 5" above left pinna. On dissection, the subpotenious tissue underneath the stitched wound was found and the left perietal bone found fractured. The meninges were found torn and the brain matter lacerated under the fractured bone. There was a big haematoma present in the brain tissue. The Doctor opined about the cause of death due to shock and haemorrhage and the injuries to the brain as a result of injury no. (D) in the ordinary course of nature. He proved the post mortem report as Ext.1. According to him, injury no. (D) might have been caused by garasa. He stated in his cross-examination that the injured appeared to be treated earlier as stitch was from before. He did not look into the report of any doctor regarding the treatment. 8. P.W.1 stated that Sultan Mian and Rahamatullah Mian were ploughing the land when Kabir Mian was sitting there when all the appellants came there armed with bhala and lathi and accused Hanif Mian ordered to assault on which the appellant Putu Mian gave garasa blow on Kabir Mian and thereafter Kabir Mian fell down. 8. P.W.1 stated that Sultan Mian and Rahamatullah Mian were ploughing the land when Kabir Mian was sitting there when all the appellants came there armed with bhala and lathi and accused Hanif Mian ordered to assault on which the appellant Putu Mian gave garasa blow on Kabir Mian and thereafter Kabir Mian fell down. He further stated that Lokrnan Mian chased Rahamatullah Mian for assaulting whereas Subhani Mian assaulted Sultan Mian with lathi. According to him, the reason behind the occurrence that the appellants are claiming the said land as their own. The injured Kabir Mian was taken to the hospital where he died. He stated in his cross-examination that he cannot say if the said land was Gair Mazarua land earlier and he had not purchased any land by virtue of Kewala. He further deposed that Kabir Mian (deceased) had filed a case against the appellants for harvesting the paddy forcibly. 9. P.W.2 is the brother of the informant who also claimed to have been ploughing the land along with the informant when the accused persons came there armed with garasa, lathi, bhala etc. and on the order of Bakar Ali Mian, accused Pufu Mian assaulted his father Kabir with garasa and thereafter his father fell down. According to him, his father was also assaulted with lathi. He further stated that he was also chased for assault but he fled away, whereas Subhani Mian assaulted his brother Sultan Mian with lathi. His father was taken to the hospital where he died. He stated in his cross-examination that there was a dispute from before in respect of the land in question with the accused persons and accused persons had also harvested the paddy earlier. He specifically stated in his cross-examination that he cannot say as to whether his father sustained injury by failing on the field and he had not seen the injury on the back of the deceased. 10. P.W.3 is the informant who stated that he along with his brother Rahamatullah were ploughing the land when his father was sitting there on the ridge and the accused persons came there armed with garasa, lathi etc. According to him, accused persons came there raising hulla and started assaulting when accused Putu Mian assaulted with garasa on the head of his father and thereafter his father fell down. According to him, accused persons came there raising hulla and started assaulting when accused Putu Mian assaulted with garasa on the head of his father and thereafter his father fell down. Mazahar Mian also chased his brother Rahamatullah Mian for assaulting with garasa but he fled away whereas Subhani Mian assaulted him with lathi. His father died in the hospital. According to him, he had already ploughed one Kiyari on the western side of the land. He also admitted that there is a dispute in between the parties from before in respect of the said land. He admitted in Paragraph 17 that he was examined by the doctor but admittedly neither any injury report has been brought on the record nor the Doctor has been examined. 11. P.W.6 is the Investigating Officer who claimed to have recorded the fard beyan and the investigation was completed after recording evidence of the witnesses and submitted charge sheet. He had also seized blood stained earth. 12. P.W.9 claimed to have visited the place of occurrence and saw the accused persons armed with deadly weapons. He further stated that Kabir Mian was sitting there with Sultan Mian and Rahamatullah Mian was ploughing the land. He further stated that accused Putu Mian gave garasa blow on the head of Kabir Mian, as a result of which, he fell down. He further deposed that Zama Mian also assaulted from the backside of garasa to Kabir Mian. Subhani Mian assaulted with lathi to Sultan Mian. Kabir Mian, who was unconscious by the assault, was taken to the police station and thereafter he was taken to Chainpur Hospital and thereafter he was sent to Sadar Hospital, Daltonganj, where he died. He stated in his cross-examination that he has got no concern with the land in question, which was ploughing, by the informant and he had not seen any document of the said land. He also claimed to have raised alarm at the relevant time. He stated further that first of all Kabir Mian was assaulted with• garasa and thereafter he was assaulted with lathi. No any other witness has been examined. All the appellants were examined under section 313 of the Code of Criminal Procedure and they have denied the allegation. 13. He also claimed to have raised alarm at the relevant time. He stated further that first of all Kabir Mian was assaulted with• garasa and thereafter he was assaulted with lathi. No any other witness has been examined. All the appellants were examined under section 313 of the Code of Criminal Procedure and they have denied the allegation. 13. The allegation as made out that the accused persons having armed with Garasa, Farsa, Tangi, Lathi etc., came and on the order of Bakar Ali Mian, appellant Putu Mian gave Garasa blow on the head of Kabir Mian, as a result of which, he died. It is also alleged that one Subhani Mian assaulted to the informant by lathi, whereas appellant Mazahar Mian gave Garasa blow to Rahamatullah Mian but it could not hit him. 14. Now let us examine the evidence collected during trial as to how far the prosecution has been able to establish its charges beyond all reasonable doubts. 15. It is true that there is a specific and direct allegation against appellant Putu Mian for giving Garasa blow on the head of Kabir Mian, father of the informant, who died due to the said injury. To this effect, all the witnesses are consistent in saying that it was Putu Mian who gave Garasa blow on the head of Kabir Mian and this allegation supporting with evidence has also been corroborated fully by the medical evidence, as the Doctor, who held post mortem on the dead body of Kabir Mian, found stitched Injury No. (D) caused on the left side of the head and he opined that the cause of death was due to shock and haemorrhage resulting the injury caused on brain, as a result of Injury No. (D). Even P.W.9, who is said to be an independent witness, has fully corroborated the evidence• of other eye-witnesses on this point. According to him, it was Puttu Mian who gave Garasa blow on the head of Kabir Mian, as a result of which, he fell down. 16. Regarding the allegation made against other appellants for forming an unlawful assembly having deadly weapons with common object; there appears vital contradiction in the testimony of P.Ws. According to him, it was Puttu Mian who gave Garasa blow on the head of Kabir Mian, as a result of which, he fell down. 16. Regarding the allegation made against other appellants for forming an unlawful assembly having deadly weapons with common object; there appears vital contradiction in the testimony of P.Ws. P.W.1 stated that Hanif Mian ordered to assault as well as he deposed in general way that all the accused persons having Garasa, Bhala, Lathi etc., but he is not specific as to who was holding which of the weapons. P.W.2 also claimed to be an eye witness, being the brother of the informant, has also stated in general way about the holding of weapons by the accused persons and not specific. According to him, Bakar Ali Mian and Hanif Mian ordered to assault. He has no Knowledge as to how the land in question was acquired by them. He also admitted that the accused persons had harvested the paddy earlier. P.W.3 stated in contradictory manner in respect of the members of the unlawful assembly. According to him, all the accused persons suddenly came there and started assaulting. There was no instigation. P.W.9 stated in a different way and, according to him, all the accused persons came there and thereafter suddenly accused Putu Mian who was holding Garasa started assaulting Kabir Mian and gave a Garasa blow on his head from back. There is no premeditation about any planning for such assault nor there is anything specifically stated about common object of the accused persons. Mere fact that the other accused persons came together with the main accused is not sufficient to indicate that they had come having shared common object to commit murder. It may be noted here that the allegation as made that the informant was also assaulted by lathi by Hanif Mian and he was treated in the hospital but surprisingly to note here that neither any injury report has been produced nor the doctor has been examined on this point to substantiate such story of assault. Thus the story as propounded for assault by lathi to the informant is also falsified. It may be further noted that specifically there is mentioned that P.W.2 was also chased for assault with garasa but admittedly it could not hit him, which fact has also not been established. Thus the story as propounded for assault by lathi to the informant is also falsified. It may be further noted that specifically there is mentioned that P.W.2 was also chased for assault with garasa but admittedly it could not hit him, which fact has also not been established. There appear much vital contradictions in respect of forming an unlawful assembly having common object for killing Kabir Mian. In this way, apparently the allegations as made for the offence under section 302/ 149 of the Indian Penal Code have not been fully substantiated by the testimony of P.Ws. 17. Mr. T.R.Bajaj, learned counsel appearing on behalf of the appellants submitted that the whole prosecution case is false in view of the fact that none of the witnesses has supported the manner of occurrence as alleged and there is a vital contradictions in the testimony of P.Ws. as regards to forming unlawful assembly. It is also submitted that the witnesses are not specific to state as to who was holding which type of weapons at the relevant time except the weapon holding by appellant Putu Mian, 18. It is well settled that if the person sought to be charged with an offence by section 149 of the Indian Penal Code said to be a member of an unlawful assembly at the time of offence, the burden of proof heavily lies on the prosecution. Simply by imputing allegation against accused persons having deadly weapons rushed to the spot is not sufficient to be declared as an unlawful assembly having common object to commit murder unless there is a specific evidence adduced about the overt act as well as there was a meeting of mind of the accused persons for committing murder and the members of such assembly must knew that such act (murder) is likely to be committed in prosecution of the common object. There being nothing to indicate that they knew about the design of the assailant. General statement about taking part and possessing weapons cannot constitute the offence under section 149 of the Indian Penal Code. But the ingredients of unlawful assembly having common object shall be gathered and established from the facts of each case, which shall differ from case to case. It is true that the assembly, which was lawful, can be unlawful subsequently but there is no such evidence adduced in this respect in the instant case. 19. But the ingredients of unlawful assembly having common object shall be gathered and established from the facts of each case, which shall differ from case to case. It is true that the assembly, which was lawful, can be unlawful subsequently but there is no such evidence adduced in this respect in the instant case. 19. There must be nexus between the common object and the offence committed. But in absence of such criteria, the offence under section 149 of the Indian Penal Code must fail. 20. It is well established that mere fact that the appellants were armed with weapons would not by itself establish that they shared the common object for killing the deceased. Moreover, in the instant case, as stated above, there is vital contradiction in the evidence of P.Ws. as regards to the manner of occurrence as against those appellants who are alleged to be the members of an unlawful assembly having deadly weapons. Enmity is admitted as against appellant Bakar Ali Mian and, therefore, false implication cannot be ruled out. 21. Thus I find that the prosecution has not successfully established the charge against the appellants no. 1, 3, 4, 5 and 8, namely, Bakar Ali Mian, Zama Mian, Sharif Mian, Mazahar Mian and Zahrul Mian for the offence under section 302/149 of the Indian Penal Code as well as for the offence under sections 147 and 323 of the Indian Penal Code. Thus, I find that the learned Trial court erred in convicting them for the said offence. 22. In the result, the appeal preferred by appellants no.1, 3, 4, 5 and 8, namely, Bakar Ali Mian, Zama Mian, Sharif Mian, Mazahar Mian and Zahrul Mian is allowed and they are acquitted of the charges levelled against them. The judgment of conviction and sentence passed against them by the learned Trial court is set aside. They are on bail. They are discharged from the liabilities of their bail bonds. 23. As regards appellant no.2 (Putu Mian), it is evident that all the witnesses i.e. P.Ws. 1, 2, 3 and 9 (being the eye witnesses) are very consistent in their deposition by stating that it was he who gave Garasa blow on the head of the deceased causing his death. The Doctor, who held post mortem, also found the said injury being stiched wound and that was sufficient for death in ordinary course of nature. 24. 1, 2, 3 and 9 (being the eye witnesses) are very consistent in their deposition by stating that it was he who gave Garasa blow on the head of the deceased causing his death. The Doctor, who held post mortem, also found the said injury being stiched wound and that was sufficient for death in ordinary course of nature. 24. Thus I find that the prosecution has fully established the charges against appellant no.2 (Putu Mian) for the offence under sections 302, 447 and 148 of the Indian Penal Code beyond all reasonable doubts for which he is liable to be convicted and accordingly, Putu Mian (appellant no.2) in convicted thereunder. 25. In the result, the appeal preferred by appellant no.2 (Putu Mian) is dismissed. Thus the order of sentence passed against him by the learned Trial court is confirmed. Hari Shankar Prasad, J.-I agree.