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2004 DIGILAW 328 (PAT)

Mohd. Yasin & Ors. v. State Of Bihar

2004-03-22

AFTAB ALAM, B.K.JHA

body2004
Judgment AFTAB ALAM & BAL KRISHNA JHA, J. 1. The appellants, Md. Yasin and Md. Mehdi, have been convicted and sentenced to life imprisonment with fine Rs. 1,000/- each for the offence under Sections 302 and 302/34 of the Indian Penal Code respectively and in default further imprisonment for three months. All the three appellants have been convicted and sentenced to R.I. for six years with fine Rs. 500/- each for the offence under Section 201 of the Indian Penal Code and in default further imprisonment for two months. All the three appellants have further been convicted under Section 342 of the Indian Penal Code and sentenced to ,R.I. for six months with a direction to run the sentences awarded against them concurrently. 2. At first, altogether five accused persons were tried together but two accused, Bibi Yashma and Bibi Masiyam, were acquitted of the charges and three accused- appellants were convicted as above by the order of the learned Additional Sessions Judge-II, Araria passed on 28th September, 2000 in Sessions Trial No. 254/99. 3. It may be stated here that the informant, Md. Raji Anwar and the accused- appellant, Md. Hafiz are step brothers. The accused, Md. Mehdi is the son Md. Hafiz is the brother, Bibi Yashma is the wife and Bibi Masiyam is the sister of the accused, Md. Yasin. 4. The case of the prosecution is contained in the fardbeyan (Ext. No. 2) of the informant, Md. Raji Anwar, PW 5. The informant alleged that right from 10 a.m. of 19th July, 1998 the accused, Md. Yasin, Md. Mehdi and Bibi Yashma, were quarrelling with his mother, Bibi Gulesan for plucking Jack-fruits and other matters. On the same day at about 6 p.m. in the evening at the time of Magrib the accused, Md. Yasin alongwith the accused, Md. Mehdi came in his agan and asked his mother to leave the house and homestead land and in case of non-compliance threatened to commit her murder. On being replied by his mother, Bibi Gulesan that it is not easy to commit her murder, the accused Md. Yasin caught hold of her neck and began to press it. When Bibi Gulesan protested, the accused, Md. Mehdi, caught hold of her right hand and assaulted her. The accused, Bibi Masiyam caught hold of her left hand and the accused, Md. Yasin caught hold of her neck and began to press it. When Bibi Gulesan protested, the accused, Md. Mehdi, caught hold of her right hand and assaulted her. The accused, Bibi Masiyam caught hold of her left hand and the accused, Md. Yasin ultimately strangulated Bibi Gulesan to death and thereafter he left her. The informant further alleged that then at the point of knife the accused, Md. Yasin confine him in the western house and all the accused threatened him as well as his old ailing father to commit their murder in case of raising hulla by them. Thereafter all the three accused took the dead body of the deceased, Bibi Gulesan, kept in the western house and locked. At that time the accused, Bibi Yashma, remained standing near his father with a knife and the accused, Bibi Masiyam, was in the agan keeping a watch upon him as well as his father. The informant further alleged that at about 8 p.m., Md. Ilyas, his maternal uncle came in his agan calling "Didi-Didi" whereupon his step sister, the accused, Bibi Masiyam, told that his sister has gone to Machhela. In the mean time the accused, Md. Yasin, Md. Mehdi, Md. Hafiz and Bibi Yashma came with a gunny bag and unlocked the door of the eastern house. They caught hold of his maternal uncle, Md. Ilyas and at the point of knife confined him in the room in which the informant was confined. They also threatened to commit his murder in case of raising bulla by him, so both the informant and Md. Ilyas could not master courage to raise bulla. Thereafter the accused persons dragged out the dead body of the deceased, Bibi Gulesan, kept in the gunny bag, and took away outside through the northern passage of the agan. The accused persons disposed of her dead body secretly. The informant further alleged that in the morning his father opened the door of the house and he along with his maternal uncle, Md. Ilyas came out and narrated about the incident to the villagers and began to search the dead body of the deceased Bibi Gulesan but her dead body could not be traced out by them. The motive behind the occurrence was alleged to be the land dispute in between the parties. 5. Ilyas came out and narrated about the incident to the villagers and began to search the dead body of the deceased Bibi Gulesan but her dead body could not be traced out by them. The motive behind the occurrence was alleged to be the land dispute in between the parties. 5. On 20.7.1998 at 15 hours, Sri N. Pandit, ASI of Jokihat Police Station recorded the fardbeyan (Ext. No. 2) of the informant, Md. Raji Anwar at his darwaja in village Matiyari, PS Jokihat, district Araria in presence of his father, Hazi Abdul Majid, PW 2, maternal uncle, Md. Ilyas, PW 8 and Md. Talib, PW 6. On the basis of his fardbeyan a formal FIR (Ext. No. 3) was drawn up and Jokihat PS Case No. 68/98, dated 20.7.1998 was instituted against the five accused persons, namely, Md. Yasin, Md. Mehdi, Bibi Masiyam, Md. Hafiz and Bibi Yashma under Sections 302/201/34 of the Indian Penal Code. After investigation and cognizance of the offence the case of all the five accused persons was committed to the Court of Sessions to stand trial under Sections 342/302/201/34 of the Indian Penal Code. All the five accused persons were charged under Sections 342 and 201 of the Indian Penal Code. The accused, Md. Yasin, was further charged under Section 302 of the IPC. The accused, Md. Mehdi and Bibi Masiyam were again charged under Sections 302/34 of the Indian Penal Code and they faced the trial. 6. The defence of the appellants is that they are quite innocent and have been falsely implicated in this case. 7. In course of trial the prosecution examined altogether 11 witnesses in support of its case. Out of them PW 1, Md. Jakrruddin is a hearsay witness. His evidence is that he learnt about the murder of Bibi Gulesan from her husband, Md. Haji Abdul Majid, PW 2 but not the names of her murderers. PW 2, Md. Haji Abdul Majid is the husband of the deceased, Bibi Gulesan. His evidence is that at the time of the occurrence his wife Bibi Gulesan was along with him she was murdered but failed to identify her assailants. In cross-examination he has categorically denied his knowledge about the occurrence. PW 3, Md. Hasib is a seizure list witness but has denied the seizure in his presence as well as his signature on the seizure list. In cross-examination he has categorically denied his knowledge about the occurrence. PW 3, Md. Hasib is a seizure list witness but has denied the seizure in his presence as well as his signature on the seizure list. PW 4, Alimuddin, PW 6, Md. Talib and PW 7, Md. Wassik, have also denied their knowledge about the occurrence and were declared hostile by the prosecution. In cross-examination nothing material could be surfaced in their evidence. PW 5, Md. Raji Anwar, is the informant himself. It appears from his evidence that he lodged this case and proved his signature on the fardbeyan (Ext. No. 1) but denied to have made any statement before the police. He was also declared hostile and was put for cross-examination by the prosecution. In cross- examination by the prosecution he has denied to have made any statement before the police as contained in the fardbayan lodged by him. In cross-examination by the defence he has categorically stated that he had not seen any sort of the occurrence. PW 8, Md. Ilyas, is the maternal uncle of the informant. He has stated that he had not seen the occurrence. On hearing about the quarrelling in between both the parties when he arrived in the agan of the deceased, Bibi Gulesan, the accused, Md. Yasin, Md. Hafiz and Md. Mehdi, caught hold of and confined him in a room in which Md. Raji Anwar had been confined. They also threatened him with dire consequence in case of raising hulla. He has further stated that thereafter the accused, Yasin, Mehdi and Hafiz dragged out the dead body of the Gulesan from the room, kept in a gunny hag, and went outside the agan. In the following morning his brother-in-law, Hazi Abdul Majid, PW 2 opened the door and he along with the informant came out, narrated about the occurrence to the villagers and started searching the dead body of the deceased, Bibi Gulesan but her dead body could not be located. A blood stained gunny bag and a shirt of the accused, Mehdi, were found in a field. He has further stated that 3/4 days after the occurrence, leg of Bibi Gulesan, was traced out on the bank of the river. A blood stained gunny bag and a shirt of the accused, Mehdi, were found in a field. He has further stated that 3/4 days after the occurrence, leg of Bibi Gulesan, was traced out on the bank of the river. In cross-examination he has stated that the night of occurrence was dark one but he had identified them in the light of the lantern from the window of the confined room. He has further stated that he picked up the information from the informant, Raji Anwar about the commission of murder of his mother by the accused, Yasin, Hafiz and Mehdi. The evidence of PW 9, Md. Gyass is that he along with others searched the dead body of Bibi Gulesan in course of which her leg was located on the bank of the river. In cross-examination he has stated that he along with Wassik produced the leg of the deceased, Bibi Gulesan at the police station and a paper was prepared in their presence there. 8. PW 10, Nagendra Pandit, is the Investigating Officer of this case. His evidence is that on 20.7.1998 he was posted as ASI at Jokihat Police Station. On the same day he recorded the fardbeyan of the informant, Raji Anwar and was signed by him. He has proved the fardbeyan (Ext. No. 2). He has also proved the formal FIR which is in his pen and signature (Ext. No. 3). He has stated that thereafter he visited the place of occurrence which was the house of the informant, Raji Anwar. His further evidence is that he recorded the further statement of the informant and the statement of the witnesses, Md. Haji Abdul Majid, PW 2, Md. Ilyas, PW 8, Md. Jakiruddin, PW 1, Md. Gyass, PW 9 and others. He has further stated that he had also accompanied the villagers searching the dead body of the deceased, Bibi Gulesan in course of which one gunny bag was produced by the witness, Md. Ilyas. On opening the gunny bag a blood-stained shirt was found which was identified by all the villagers as of the accused, Mehdi. He prepared the seizure list in presence of the witnesses. He proved the seizure list (Ext. No. 4) and signature of the witnesses, Hasib, PW 3 and Tayab on the seizure list (Ext. No. 1/1) and 1/2, respectively). On opening the gunny bag a blood-stained shirt was found which was identified by all the villagers as of the accused, Mehdi. He prepared the seizure list in presence of the witnesses. He proved the seizure list (Ext. No. 4) and signature of the witnesses, Hasib, PW 3 and Tayab on the seizure list (Ext. No. 1/1) and 1/2, respectively). He has further stated that on 22.7.1998 the informant along with Md. Gyassuddin, Md. Wassik and Dafadar Jai Prakash, came at the police station and produced the left leg which the informant claimed to be that of his mother, Bibi Gulesan. Thereafter he prepared the inquest report and managed to dispatch the leg for post mortem examination. He also proved the inquest report prepared by him (Ext. No. 5). This witnesses was also confronted with the statements of the witnesses, Md. Talib, PW 6 and Wassik, PW 7 made before him during investigation under Section 161, Cr PC. He has stated that both these witnesses had given a hearsay account of the occurrence before him. 9. PW 11 is Dr. Pradeep Kumar Yadav. He conducted autopsy on the alleged left leg but he failed to ascertain the cause of the death. He proved the post mortem report (Ext. No. 5). It appears from his cross-examination that as the leg did not bear any identification mark it could not be ascertained as to whether the leg in question was of male or female. 10. Thus, in this case no witness has stated that the appellants had assaulted the deceased, Bibi Gulesan or committed her murder or disposed of her dead body. All the material witnesses have turned hostile to the prosecution. Further, from the post mortem examination of the highly decomposed unmarked leg the prosecution also failed to establish the identify of the deceased, Bibi Gulesan. Further the evidence of PW 8, Md. Ilyas that when the dead body of the deceased, Bibi Gulesan was taken out from the angan by the appellants for disposal it was a dark night but he identified them in the light of the lantern appears to be doubtful because this mode of identification was introduced for the first time in Court by him. Again this witness and the informant both were alleged to have been confined in one room but the informant has not come forward to support it. 11. Again this witness and the informant both were alleged to have been confined in one room but the informant has not come forward to support it. 11. The learned Court below failed to appreciate all these inherent infirmities and wrongly accepted the prosecution evidence for the conviction of the appellants. In my opinion all the appellants are entitled for benefit of doubt. 12. In the result, there is merit in this appeal and it is allowed. The order of conviction and sentence passed against the appellants are set aside and they are acquitted of the charges. The appellant. Md. Yasin, is in custody, so he is ordered to be set at liberty forthwith in this case, if not wanted in any other case. The rest two appellants, Md. Mehdi and Md., Hafiz, are on bail, so they are discharged from the liabilities of their" executed bail bonds. 13. I agree.