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2004 DIGILAW 113 (PAT)

Guddu Mian @ Ashrar Ahmad v. State Of Bihar

2004-01-23

AFTAB ALAM, B.K.JHA

body2004
Judgment B.K.Jha, J. 1. The sole appellant, Guddu Mian @ Ashrar Ahmad, has appealed the judgment and order passed by then learned Sessions Judge, Gopalganj on 24.1.2000 in Sessions Trial No. 157 of 1995 whereby he has been convicted u/s. 302 of the Indian Penal Code and sentenced to life imprisonment. 2. The case of the prosecution is contained in the fard beyan of the informant, Anwarul Haque (RW. 4) in which he has alleged that on 13.5.1995 there was a marriage of the daughter of his co-villager, Nain Lohar. At about 7.30 P.M. Barat party had come at his house and he alongwith his grandson, Md. Anis besides villagers had assembled there to see the Barati. While the villagers and the members of Barat party were engaged in firing, the accused, Guddu Mian @ Ashrar Ahmad took out a country made pistol and fired at Md. Anis. The shot hit in his abdomen below chest and he fell down injured on the ground. He was tossing and bleeding profusely. He died on way to Sadar Hospital, Gopalganj. The wife of Mahboob Mian, Haseeb, Nurul hasan, RW. 3 and Manager Koiri witnessed the occurrence. The infomant further alleged that while the deceased, Md. Anis was studying at Patna the accused, Guddu Mian alias Ashrar Ahmad was also living there. The accused, Guddu Mian @ Ashrar Ahmad committed the murder of Anis because of some differences in between them. 3. On the same day at 10 P.M., Inspector, Wakil Ram O.C. of Gopalganj (Town) RS. in Sadar Hospital, Gopalganj, recorded the fard beyan of the informant, Anwarul Haque, P.W. 4 of village Miralipur, RS. Thawe, District-Gopalganj. His fard beyan was forwarded to the O.C. Thabe for the institution of a case and on the basis of which Manjhargarh RS. Case No. 92/95 dated 14.05.1995 was instituted against the accused u/s. 302 of the Indian Penal Code and the police switched over to the investigation of the case. On completion of investigation police submitted the charge-sheet against the accused for trial u/s. 302 of the Indian Penal Code. After cognizance of the offence and commitment of the case the accused faced the trial which resulted in his conviction and sentence as indicated above. 4. The appellant took a defence of his innocence and false implication in this case. 5. In the eventual trial the prosecution examined altogether 9 witnesses. 6. After cognizance of the offence and commitment of the case the accused faced the trial which resulted in his conviction and sentence as indicated above. 4. The appellant took a defence of his innocence and false implication in this case. 5. In the eventual trial the prosecution examined altogether 9 witnesses. 6. On behalf of the appellant learned counsel submitted that the present fard beyan/F.I.R. is not an original. It was farbicated, forged and ante dated. According to him the fard beyan has been proved by the witnesses and is alleged to have lodged on 13.5.1995 at 10 P.M. in Sadar Hospital, Gopalganj but the evidence of RW. 3, Nurul Hasan and RW. 4, Anwarul Haque, the Informant, Indicates that the fard beyan In question was lodged on the following day of the occurrence at 12 noon when the police reached at the spot. In this context he has placed his reliance on a case of Marudanal Augusti Appellant V/s. State of Kerala, 1980 4 SCC 425 wherein it has been held that "Once FIB is held to be fabricated or brought into existence long after the occurrence, the entire prosecution case would collapse." 7. Learned counsel for the appellant further contended that the motive behind the occurrence as alleged by the prosecution has not been proved by the prosecutiion. In the Protest Petition (Ext. No. 2) filed just after 5 days of the occurrence on 18.5.1995 before the C.J.M., Gopalganj, there was no mention of motive. According to him RW. 2, Nayak Miyan, has clearly stated at para 21 that "Ghatna Ke Pahelay Guddu Ke Ghar Se Humlogo Ka Aana Jana Tha" so in view of this positive evidence there was no motive on the part of the accused to commit the murder of Md. Anis. Learned counsel for the appellant further contended that not a single independent witness has been examined by the prosecution. At the same time the prosecution failed to examine the F.I.R. named witnesses. The prosecution examined only interested and partisan witnesses, so their evidence should not be accepted for the conviction of the appellant. 8. On the other hand, learned A.P.R, Mr. Jaiswal submitted that in case of partisan or relative witnesses only a note of caution is given to the Court. The prosecution examined only interested and partisan witnesses, so their evidence should not be accepted for the conviction of the appellant. 8. On the other hand, learned A.P.R, Mr. Jaiswal submitted that in case of partisan or relative witnesses only a note of caution is given to the Court. In accepting of such evidence it is necessary to scrutinise with more than ordinary care and the question of motive became immaterial in case of direct evidence. In this case, there is sufficient direct evidence against the appellant and the prosecution has fully proved the case against him. A reliance has been placed on a case of Ram Sanjlwan Singh and Others V/s. State of of Bihar, AIR 1996 SC 3265 in which it has been held that "the independent witnesses-not examined, though their statements were recorded by the police-would not detract veracity of eye-witnesses whose presence on spot was natural and probable." 9. In order to appreciate the rival contentions how I advert to the evidence on record. 10. As stated above, the prosecution has examined altogether 9 witnesses in support of its case. Out of them RW. 1, Wajid Miayan, P.W. 2, Nayak Miyan, P.W. 3 Nurul Hasan and P.W. 4, Anwarul Haque, the informant are the eye-witnesses to the occurrence. RW. 5 is Dr. Tirthanand Singh who held post-mortem examination on the dead body of the deceased, Md. Anis. RW. 6, Akshyawar Ram, is the Investigating Officer of this case. RW. 7, Umashankar Dwivedi, is a Judicial Magistrate. His evidence is that on 25.5.1995 while he was posted as Judicial Magistrate, Gopalganj. He recorded the statements of Anwarul Haque, P.W. 4, Wajid Miyan, RW. 1, Nurul Hasan, P.W. 3 and Nayak Miyan, P.W. 2 u/s. 164 of the Criminal Procedure Code He has proved their statements which are in his pen and signature (Ext. Nos. 5 to 5/3). P.W. 8, Devanand Singh is a formal witness. He has proved the fard beyan (Ext. No. 6) and inquest report (Ext. No. 7) which are in the pen and signature of Inspector, the then Officer Incharge of Gopalganj (Town) P.S., Sri Wakil Ram. He has proved the formal F.I.R. which is in the pen and signature of the then S.I. Sri Rameshwar Sharma, Ext. No. 8). P.W. 9, Fakhre Alam, is the son of the informant, Anwarul Haque. He has proved the certificate (Ext. No. 9) and fee receipt (Ext. He has proved the formal F.I.R. which is in the pen and signature of the then S.I. Sri Rameshwar Sharma, Ext. No. 8). P.W. 9, Fakhre Alam, is the son of the informant, Anwarul Haque. He has proved the certificate (Ext. No. 9) and fee receipt (Ext. No. 10) issued by the R.P.S. College in favour of the deceased, Md. Anis to show that the deceased was B.Sc. student in R.P.S. College, Patna for the Sessions of 1994 to 1997. 11. P.W. 5 is Dr. Tirtha Nand Singh. His evidence is that on 14.5.1995 while he was posted as C.A.S. at Sadar Hospital, Gopalganj, on the same day at about 7.30 A.M. he conducted autopsy on the dead body of the deceased, Anis and found the following ante-mortem injuries: (i) An oval aperature 3/4 cm. in diameter with inverted margin deep to thoracic cavity on front of chest at the middle of sternum. About four centimetre area surrounding the wound the skin over the chest was blackened, scorched and tattooed. This was the would of entrance. (ii) Semi circular wound with everted and lacerated margin on the back of chest at the level of seventh inter coastal space-2.5 centimetre in diameter communicating corresponding to wound of entrance obliquely and posteriorly. It was the wound of exit. On post-mortem examination there was fracture of sternum passing posteriorily. There was laceration of left lung and thoracic part of aorta. There was also fracture of seventh coastal rib. The thoracic cavity was full of blood and blood clot. In his opinion the death was caused due to shock and haemorrhage arising out of the above mentioned injuries caused by fire arm. He found the time elapsed between death and post-mortem examination held within 12 hours. He has proved the post-mortem repot (Ext. No. 3). He has further stated that the said injury was sufficient to cause death in ordinary course of nature. 12. The defence has also not challenged the murder of Md. Anis but has debated the hands of the appellant in the commission of his murder. 13. In this case, P.W. 1, Wajid Miyan, P.W. 2, Nayak Miyan, P.W. 3, Nurul Hasan and P.W. 4, Anwarul Haque, the informant, have claimed to be the eye-witnesses to the occurrence. P.Ws. 1, 2 and 4 are own brothers and are cousin of P.W. 3, Nurul Hasan. 13. In this case, P.W. 1, Wajid Miyan, P.W. 2, Nayak Miyan, P.W. 3, Nurul Hasan and P.W. 4, Anwarul Haque, the informant, have claimed to be the eye-witnesses to the occurrence. P.Ws. 1, 2 and 4 are own brothers and are cousin of P.W. 3, Nurul Hasan. At the alleged time all of them used to reside in different rooms of the same nouse. The evidence of P.W. 4, Anwarul Haque, the informant, is that on 13.5.1995 at 7.30 P.M. Barati had come at the house of Nain Sharma in connection with the marriage of his daughter. He alongwith Nurul Hasan, P.W. 3, Wajid Hasan, P.W. 1, Nayak Miyan, P.W. 2 and grandson, Anis Alam had been there. The accused, Guddu Mian, son of Ijhar Miyan, was also standing there at a distance of 2 steps from them. The accused, Guddu Mian, took out pistol and fired on the chest of his grandson, Anis Alam. An attempt was also made to apprehend him but he again loaded the pistol and showing the same made good escape from there. He has further stated that Md. Anis fell down unconscious on the ground and was bleeding profusely. Thereafter he with the help of Nayak Miyan took Md. Anis to Sadar Hospital, Gopalganj on a motorcycle but on the way he died. Thereafter the deceased, Anis was taken to Sadar Hospital, Gopalganj. His further evidence is that in Sadar Hospital Gopalganj, the police inspector came, took down his statement and he signed. He has proved his signature on the fard beyan (Ext. No.A/ A). He has further stated that he had identified the accused in the light of the generator and moon, he has further stated that Md. Anis was reading at Patna in R.P.S. College and the accused, Guddu Mian, was also living there alongwith his father. There was some difference in between them and the accused had given a threat to the life of Anis. Md. Anis had disclosed it to him and other family members. He has further stated that on the following day the A.S.I. of Thawe Police Station visited the P.O. situated in front of the joing house of cousin brothers, Yogendra Sharma and Nain Sharma. The A.S.I. had taken his subsequent statements and also the statements of the other witnesses but he had not written their evidence. He has further stated that on the following day the A.S.I. of Thawe Police Station visited the P.O. situated in front of the joing house of cousin brothers, Yogendra Sharma and Nain Sharma. The A.S.I. had taken his subsequent statements and also the statements of the other witnesses but he had not written their evidence. The police of Thawe Police Station was in collusion with the accused, so he made a Protest Petition in the court of C.J.M., Gopalganj. He has proved the Protest Petition (Ext. No. 2). He has further stated that his statement was also recorded u/s. 164 of the Criminal Procedure code by the Judicial Magistrate of Gopalganj and was signed by him. In cross-examination at para 23 his evidence is that he had not stated in his fard beyan that at the alleged time villagers and the members of the Barat Party both were indulged in firing. His further evidence is that when Anis was shot at about 15 Hindus and 100 Muslims were present at the place of occurrence but none was examined by the police. At para 30 his evidence is that after sustaining fire arm injury Anis was conscious and had disclosed the name of his assailant to his mother, sister and villagers. He has admitted to have stated before the police that Nurul Hasan, P.W. 3, Wajid Miyan, PW. 1, Nayak Miyan, P.W. 2 had gone at the Darwaja of Nain Sharma along with him. At para 40 he has stated that the blood had fallen on the ground where Anis was lying injured. At para 41 his evidence is that next day of the occurrence at 8.30 A.M. he alongwith Nurul Hasan, P.W. 3, Nayak Miyan, P.W. 2 and Wajid Hussain, P.W. 1 had gone to Thawe Police Station for instituting a case. The A.S.I. of Thawe Police Station did not record their statements and no case was lodged there.Thereafter the A.S.I. of Thawe Police Station came to the P.O. Village, recorded his statement for the first time on the next day at his Darwaja at 8.30 A.M. and he put his signature on the statement. Besides him, Nurul Hasan, P.W. 3 also signed his statement. He has proved his signature (Ext. No. A/A) and that of Nurul Hasan (Ext. No. A). Besides him, Nurul Hasan, P.W. 3 also signed his statement. He has proved his signature (Ext. No. A/A) and that of Nurul Hasan (Ext. No. A). At para 49 he has denied the suggestion that the accused has been falsely dragged in this case because of refusal by his father to withdraw a case lodged by him against the prosecution side. Out of the remaining three eye witnesses P.W. 1, Wajid Miyan, was neither named in the F.I.R. nor was examined by the police. Nayak Miyan, P.W. 2 was also not named in the F.I.R. but was examined by the police. They have supported and corroborated the evidence of P.W. 4, Anwarul Haque in their chief on all material points. In cross-examination at para 6, P.W. 1, Wajid Miyan, has stated that on the very day of the occurrence police had not visited the P.O. village. Police had come to the P.O. village after 10/11 days of the occurrence and he had not given any statement before the police. Thereafter directly a case was lodged in the Court of C.J.M. and before that Anwarul Haque had lodged a case 8/9 days after the occurrence. In the same breath at para 7 he has come forward to state that he was examined by the police. But the evidence of I.O., P.W. 6, Akshyawar Ram, vide para-15 clearly suggests that he was never examined by the police. At para 13 he has stated that where the injured Anis had fallen, the blood was found there. He has further stated that a cartridge was also located near the dead body of the deceased, Anis. In cross-examination P.W. 2, Nayak Miyan, has stated that police had visited the place of occurrence on the next day at about 12 noon but he was not examined by the police. Police recorded the statements of Anwarul Haque and a cartridge was also seized by the police. He has further stated that the deceased, Anis, was shot at the Darwaja of Nain Sharma. His further evidence at, para 10 is that on the day of occurrence he had not seen any cartridges on the Darwaja of Nain Sharma. He has denied to have stated before the police that on bulla he arrived at the place and noticed the accused, Guddu, fleeing away with a pistol in his hand and had spotted Anis lying injured on the ground. He has denied to have stated before the police that on bulla he arrived at the place and noticed the accused, Guddu, fleeing away with a pistol in his hand and had spotted Anis lying injured on the ground. At para 21 his evidence is that the house of the accused, Guddu was situated at a distance of one kilometer from his house and before the occurrence they were on visiting terms. P.W. 3, Nurul Hasan, is the F.I.R. named witness and he was also examined by the police. He has also corroborated the evidence of other eye-witnesses to the occurrence. He has stated that the post-mortem of the dead body of the deceased was held on the next day and thereafter he alongwith his dead body returned back to his native village and on the day police had visited to P.O. at 12.30 P.M. but had recorded the statements of none. Police had seized cartridge at the place of occurrence and prepared a seizure list. He has proved his signature on the seizure list (Ext. No. 1). Police had prepared the inquest report of the dead body of the deceased in Sadar Hospital, Gopalganj in his presence and was signed by him. He has proved his signature (Ext. 1/1). At para 11 his evidence is that Md. Isha was his own uncle and Suleman is his Sarhu. Rafan, Mansoor, Rafique and Manjar are own brothers of Suleman. At para 12 he has stated that Md. Ijhar, the father of the accused, Guddu, had lodged a criminal case against Mansoor Ali, Rafique Miyan, Rafan Miyan and Ijharul Haque. At the relevant time a number of persons, Hindus and Muslims were present at the Darwaja of Nain Sharma but none of them was examined in this case. At para 17 he has further stated that the police had come in the hospital in the very night of the occurrence at about 10 P.M. but at that time he alongwith others had already returned back to the native village, so the police could not examine him and others.- He has further stated that in the very night he had not given any statement before the police and on the next day police came at his Darwaja and he narrated about the occurrence. On the next day when the police came at his Darwaja Police recorded the statement of Anwarul haque and he put his signature on his statement. He (this witness) also signed his statement. He has proved his signature (Ext. No. A) and also the signature of Anwarul Haque, the informant, P.W. 4 (Ext. No. A/a). At para 21 his evidence is that a number of Hindus and Muslims were present at the place of the occurrence at the relevant hour of occurrence but none was examined by the police nor u/s. 164 of the Code of Criminal Procedure before the Judicial Magistrate. His further evidence is that the mother and sister had also come at the place of occurrence but they were neither examined by the police nor their statements were recorded u/s. 164 of the Code of Criminal Procedure before the Magistrate. He has denied to have stated before the police that he had not seen the occurrence. At para 48 he has denied the suggestion that he was putting pressure for the withdrawl of the case lodged by the father of the accused, Guddu and on refusal he brought this false case against him. 14. P.W. 6, Akshyawar Ram, is the Investigating Officer of this case. His evidence is that on 13.5.1995 he was postedas A.S.I. of Thawe Police Station, District-Gopalganj, in the morning of 14.5.1995 at about 6.30 A.M. he received the fard beyan of the informant, Anwarul Haque from Gopalganj (Town) P.S. He forwarded his fard beyan to the Manjhagarh Police Station for the registration of a case. On the basis of which Uchkagaon P.S. Case No. 92/95 was instituted and he took up the investigation of this case. In the morning of 14.5.1955 at 7 A.M. he proceeded for the P.O. village and arrived there at 7.20 A.M. He recorded the further statement of the informant and inspected the P.O. He has stated that the informant, Anwarul Haque had produced an cartridge before him and he prepared a seizure list in presence of the witnesses, Nayak Miyan and Nurul Hasan. He has proved the seizure list (Ext. No. 4). He has also proved the cartridge (Material Ext. No. I). After inspecting the place of occurrence he recorded the statements of the witnesses and on completion of the investigation charge-sheeted the accused for trial. He has proved the seizure list (Ext. No. 4). He has also proved the cartridge (Material Ext. No. I). After inspecting the place of occurrence he recorded the statements of the witnesses and on completion of the investigation charge-sheeted the accused for trial. In cross-examination he has stated that he had not found any cartridges at the place of occurrence rather it was produced before him by the informant. He had not seen any sign of blood on the ground nor the generator. He has further stated that the seized cartridge was not sent to the ballastic expert for test. He has further stated that the mother and sister of the deceased never appeared before him for their statements. The witnesses, Wajid Miyan, had not given statement before him. His attention was drawn to the statements of the witnesses recorded by him during investigation u/s. 161 of the Code of Criminal Procedure. The witness, Nayak Miyan, had not stated before him that the accused, Guddu, had fired shot on the chest of Anis. He had stated before him that on hearing hulla that Anis was shot at he went to the place of occurrence. The witness Nurul Hasan, had also not stated before him that Anis was shot at in his presence rather he had stated that on hearing hulla he went to the place of occurrence. At para 25 he has stated that the informant, Anwarul Haque, Wajid Miyan, Nayak Miyan and Nurul Hasan never came to the police station either on 13th of 14.05.1995. The informant, Anwarul Haque, had not stated before him that he had identified the accused, Guddu in the light of the moon and generator. He had also not stated before him that the accused, Guddu, had earlier threatened Anis to commit his murder. 15. A perusal of the above discussed evidence reveals that soon after the occurrence on 13.5.1995 at 7.30 P.M. the informant alongwith others went to the Sadar Hospital, Gopalganj where his fard beyan was recorded (Ext. No. 6). In the fard beyan it was clearly mentioned that the villagers and members of the Barat Party were engaged in firing but it was omitted in the Protest Petition (Ext. No. 2) and in the eventual trial. In the fard beyan the informant named three eye-witnesses and out of them only Nurul Hasan, P.W. 3 was produced by the prosecution for evidence. No. 2) and in the eventual trial. In the fard beyan the informant named three eye-witnesses and out of them only Nurul Hasan, P.W. 3 was produced by the prosecution for evidence. The I.O., P.W. 6, Akshyawar Ram, at para 31 has clearly stated that in course of investigation he examined so many witnesses including the material witness, Nain Sharma but the prosecution has withheld the evidence of F.I.R. named three witnesses and independent witnesses. Admittedly, it is not obligatory for the prosecution to examine all the witnesses but the prosecution is supposed to adduce the evidence of material witness. In this case, the F.I.R. named witnesses and the independent witness, Nain Sharma were the most material witnesses and their evidence has been withheld by the prosecution. Further, the evidence of the maker of the fard beyan, RW. 4, Anwarful Haque, the informant at para 41 clearly indicates that on the next day of occurrence at 8 A.M. he alongwith Nurul Hasan, Nayak Miyan, Wajid Miyan had gone to Thawe Police Station for lodging a case but no case was lodged there. On the next day at 8.30 A.M., the A.S.I. of Thawe Police Station came at his Darwaja and for the first time recorded his statement and was signed by him. The witness, Nurul Hasan, RW. 3, also put his signature on the statement. The evidence of P.W. 3, Nurul Hasan, at paras 17 and 18 shows that on the next day of the occurrence Thawe Police came at his Darwaja at about 12 noon and stayed for an hour there. The police recorded the statement of the informant, Anwarul Haque and he put his signature. Police had not recorded the statement of any witnesses there. RW. 2, Nayak Miyan, has also stated that on the next day of the occurrence police visited the P.O. village at about 12.00/1.00 P.M. and recorded the statement only of Anwarul Haque. The evidence of P.W. 1, Wajid Miyan at para 6 is that the police had visited the P.O. Village after 10/11 days of the occurrence and the informant, Anwarul Haque, had lodged a case after 8/9 days of the occurrence. The evidence of these witnesses conclusively suggests that the fard beyan of the informant, Anwarul Haque, was not lodged at 10 P.M. on 13.5.1995 as alleged by the prosecution rather it was lodged on 14.5.1995. The evidence of these witnesses conclusively suggests that the fard beyan of the informant, Anwarul Haque, was not lodged at 10 P.M. on 13.5.1995 as alleged by the prosecution rather it was lodged on 14.5.1995. Again on visit of the P.O. the I.O. did not find any blood nor cartridge there. The evidence of P.W. 2, Nayak Miyan, at para 10 is also that on the day of occurrence there was no cartridge at the Darwaja of Nain Sharma and as per the evidence of I.O. this cartridge was produced by the informant before him. Thus, the objective finding also does not establish the place of occurrence as alleged by the prosecution. The evidence of all the four eye-witnesses is discrepant and inconsistent with each other, so their evidence does not at all inspire confidence to rely upon them. 16. After hearing both sides and consideration of the evidence on record, I find myself at one with the submission raised on behalf of the appellant that it would be unsafe to maintain the conviction of the appellant on the basis of such evidence. I hold that the prosecution has failed to prove the charge of murder against the appellant beyond all reasonable doubts. 17. In the result, this appeal is allowed. The order of conviction and sentence passed against the appellant, Guddu Mian @ Ashrar Ahmad, are set aside and he is acquitted of the charge. He is in custody, so he is directed to be set at liberty forthwith in this case, if not wanted in any other case. Aftab Alam, J. 18 I agree.