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2006 DIGILAW 1383 (JHR)

Md. Khalil v. State of Bihar

2006-12-01

D.K.SINHA

body2006
JUDGMENT : D.K. Sinha, J.-The appellants have preferred this appeal against the judgment of conviction under Section 307 I.P.C. on 20.5.99 and order of sentence dated 25.5.99 whereby and whereunder the 1st Additional Sessions Judge, Jamshedpur awarded the sentence to the appellants to undergo rigorous imprisonment for four years in Sessions Trial No. 28/1991. 2. The prosecution story is in a narrow compass. The appellant Md. Khalil had picked up quarrel with his father and in order to usurp the entire land of his father he took the entire documents related to land, in his possession, though his father wanted that his land should be equally distributed amongst all his sons. The informant was the son-in-law of the father of the appellant Md. Khalil who was helping his father-in-law in the matter of equal distribution of the land for which the appellant Md. Khalil was nursing grudge against the informant. In the night of 11.9.89 at about 10 O'clock, the informant heard noise coming out from the house of the appellant Md. Khalil and pursuant to that the informant went to the house of the appellant and asked the cause of quarrelling which the appellant Md. Khalil who with his son Md. Tabarak Hussain (Appellant No.2) started abusing the informant and asked him to get out from his house. The informant had just started and while was proceeding towards his house, it is alleged that the appellant Md. Khalil assaulted the informant from behind his back with stick, as a result of which the informant fell down on the earth and thereafter both the appellants assaulted the informant Abdul Majid indiscriminately with stick and iron rod. The informant became unconscious sustaining the injuries. He was removed to his house. The informant received injuries on his head, left wrist, fingers, legs, thigh and knee of right leg. The statement of the informant Abdul Majid was recorded in the night intervening 11/12.9.89 at 13.30 hours at Tata Main Hospital while undergoing treatment giving rise to Parsudih P.S. Case No. 142/89 on 12.9.89 for the offence under Sections 323, 324 read with Section 34 I.P.C. The police after investigation submitted charge-sheet against both the appellants under Sections 341/325/323/307 read with Section 34 I.P.C. The appellants in course of trial pleaded their innocence and complete denial of the occurrence. The specific version of the defence was that the informant Abdul Mazid in the night of 11.9.89 at about 10 O'clock started knocking at the door of the house of the appellants armed /with stick and Bhujali and when the door was opened the informant entered into their house. His arrival was not appreciating and he was chased by the appellants and in the process of running away from their house he fell down near the well and sustained injuries. The appellants wanted to take away the informant to the Police Station but he escaped. For such conduct of the informant the appellants instituted Parsudih P.S. Case No. 141/89 in the night of 11.9.89. The informant was put on trial in the said case and was convicted by the Court of Shri Bijay Kant Khan, Judicial Magistrate, 1st Class at Jamshedpur in G.R. Case No.1543A/89 and the instant case was instituted after inordinate delay on 12.9.89 by the informant in order to screen himself from the case instituted by the appellants. 3. In course of trial, altogether 4 witnesses were produced and examined on behalf of the prosecution including the Investigating Officer. Besides certain documents were proved such as injury report (Ext. 1), command of Parsudih Police Station dated 12.9.89 (Ext. 2), formal F.I.R. (Ext. 4) and the Fardbeyan of the informant (Ext. 3). 4. Though no witness was adduced on behalf of the defence but certain public documents were proved and marked Exhibits viz. formal F.I.R. of Parsudih P.S. Case No. 141/89 (Ext. A), written report (Ext. B), charge-sheet of the aforesaid case (Ext. C) and the certified copy of the judgment passed in the aforesaid case whereby the informant of the instant case was convicted (Ext. D). The defence further proved the original ration card No. 14069 registered in the name of appellant Md. Khalil (Ext. E) and the original voter list of Jugsalai, Jamshedpur' Lok Sabha Constituency (Ext. F). 5. Learned Counsel appearing on behalf of the appellants submitted that the trial court below grossly erred by holding the appellants guilty for the offence under Section 307 I.P.C. without considering the entire gamut of documentary evidence produced in this case on behalf of the defence and ignore the contradiction in the statements of the informant and his wife. F). 5. Learned Counsel appearing on behalf of the appellants submitted that the trial court below grossly erred by holding the appellants guilty for the offence under Section 307 I.P.C. without considering the entire gamut of documentary evidence produced in this case on behalf of the defence and ignore the contradiction in the statements of the informant and his wife. Similarly the learned trial court failed to consider that there was no material at all on the record to hold the appellants guilty under Section 307 I.P.C. and that there was no intention on the part of the appellants to commit murder of the informant: 6. Advancing his argument learned Counsel further submitted that the informant was held guilty arising out of the same transaction and cause of action for the offence under Sections 448 & 506 in Parsudih P.S. Case No.141/89 which was registered on the instance of appellant No.1 and the informant of this case was released after according him the benefit of Section 3 of the Probation of Offenders Act. The learned Counsel pointed out that the learned Additional Sessions Judge in the instant case ought to have considered that when defence version was found to be true by a court of competent jurisdiction that on the date of occurrence the informant of the instant case had criminally trespassed in the house of the appellants and had committed criminal intimidation and that the appellants had acted in the exercise of their right of private defence by chasing the informant out from their house, the conviction of the appellants and sentence passed against 'them is unsustainable in the eyes of law. 7. The learned trial court perhaps' lost sight of the fact that' at the time of medical examination of the informant, Abdul Mazid, when removed to hospital he was found in a state of intoxication and this fact finds support from the defence version that the informant Abdul Mazid had entered into the house of the appellants, variously armed under the influence of liquor and upon being chased he fell down and sustained injuries on his own account. The solitary eye witness of the occurrence in the instant case is the informant himself and there is no corroborative evidence in support of his version and it was not safe for the trial court below to convict the appellants on uncorroborated evidence of the informant Abdu1 Mazid who was earlier convicted by a court of law for the same transaction relying upon the defence version of the appellants. P.W. 3 Khairu Nisha is the wife of the informant and admittedly she was not an eye witness of the occurrence as she adduced that she could not see as to under what circumstances she found her husband lying on the ground and sustained injuries. The conviction of the appellants under Section 307 I.P.C. and the sentence for four years rigorous imprisonment each, in the circumstances stated above, the learned counsel submitted, has occasioned serious violation of justice at the hands of the trial court and similarly, finding of the trial court below about improbability of Parsudih P.S. Case NO.141/89 is a question of propriety of Addl. Sessions Judge in the backdrop of the fact that the conviction of the informant Abdul Mazid was not challenged or set aside by any competent court of law. The observation of the trial court may be presumed as the wild observation who was not sitting in appeal against the judgment and order passed in Parsudih P.S. Case No.141/89 whereby and whereunder the informant PW 2 was convicted. 8. Concluding his argument learned Counsel submitted that the appellants and the informant are closely related who filed compromise petition in the trial court with the sense of "Forget and forgive since they have developed good relationship and therefore the conviction and sentence of the appellants is unsustainable. 9. Having regards to the facts and circumstances of the case, I find from the perusal of the judgment of the trial court below that the conviction of the appellants was mainly based upon the injuries found on his person. The informant Abdul Mazid was examined by PW 1 Dr. P.D. Trivedi, Assistant Surgeon, Orthopadics, Tata Main Hospital, Jamshedpur on 12.9.89 at about 2.35 a.m. who found the following injuries: (i) Lacerated wound over back of scalp 81/2 x 1/4" x bone deep. (ii) Lacerated wound over front of scalp 4" x 11/2 x bone deep. (iii) Contusion with abrasion left lower 1/3rd of forearm with fresh bleeding. P.D. Trivedi, Assistant Surgeon, Orthopadics, Tata Main Hospital, Jamshedpur on 12.9.89 at about 2.35 a.m. who found the following injuries: (i) Lacerated wound over back of scalp 81/2 x 1/4" x bone deep. (ii) Lacerated wound over front of scalp 4" x 11/2 x bone deep. (iii) Contusion with abrasion left lower 1/3rd of forearm with fresh bleeding. (iv) Abrasion of nail of left thumb with contusion. (v) Lacerated wound with contusion over left upper tibial with fresh bleeding 1 "x ½ x bone deep. (vi) Lacerated wound over pulp of left middle finger ½ x ¼ " x 1/8 ". (vii) Alcoholic smell from mouth. 10. The age of the injuries was assessed within six hours, caused by hard and blunt substance like iron rod or Lathi. The injury was proved and marked Ext. 1. The learned trial court below observed that the evidence of P.W.1 (Doctor) who examined and treated the informant fully corroborated the testimony of the informant (PW 2) and his wife P.W. 3 and that the similar injuries were found on the person of the victim informant on the same parts of his body what he as well as his wife P.W. 3 had deposed. In my opinion, such corroboration of the injuries cannot be glaring factor for sustaining the conviction of accused for the offence under Section 307 I.PC. 11. I further find from the statement of the PW 4 who was the Investigating Officer of Parsudih P.S. Case No. 142/89 that in the night of 11.9.89 while he was posted as Assistant Sub-Inspector of Police, the informant Abdul Mazid arrived at the Police Station at about 10 O'clock in injured condition and since he was unable to deliver any statement he was referred to Tata Main Hospital by two constables under command on 12.9.89 at about 1.30 a.m. The I.O. went to Tata Main Hospital on 12.9.89 and recorded the statement of the injured Abdul Mazid which was read over and explained and after finding it correct the informant put his thumb impression on his statement. After investigation he submitted charge-sheet against the appellants. In the cross-examination Investigating Officer (P.W 4) admitted a counter case instituted being Case No.141/89 first point in time in the night of 11.9.89 by the appellant No.1 but he did not arrest the informant in the said cognizable offence. After investigation he submitted charge-sheet against the appellants. In the cross-examination Investigating Officer (P.W 4) admitted a counter case instituted being Case No.141/89 first point in time in the night of 11.9.89 by the appellant No.1 but he did not arrest the informant in the said cognizable offence. He had also investigated the counter case vide Parsudih P.S. Case No.141/89 and found the allegation true against the informant of the instant case. He proved all the relevant documents including formal F.I.R. written report and charge-sheet of Parsudih P.S. Case No.141/89 which were marked exhibits on behalf of the defence. From the statement of P.W. 4 Investigating Officer, it is crystal clear that he found both the cases vide Parsudih P.S. Case No.141/89 and Parsudih P.S. Case No. 142/1989 true in which there was allegation and counter allegation against each other by the informant (P.W. 2) and the appellants herein. The appellants' case was instituted first point in time of cognizable offence but it is nowhere stated that the I.O. had ever taken any chance to take the informant in his custody. I do not find consistency in the two cases counter to each other and both were found true which show the in competency of the Investigating Officer and that the investigation of the cases were conducted in slipshod manner, without objective finding of the Investigating Officer after his visit to the places of occurrence as pointed out by the informants of the respective cases. The informant of the instant case has been convicted by a competent court of law which has not been set aside by any appellate court much less by the 1st Additional Sessions Judge, Jamshedpur in Cr. Appeal. When two versions are appearing giving rise to different police case arising out of the same and similar transaction and in the former case the informant of the instant case has been convicted without there being alteration of its finding in the appellate court, it would not be proper to ignore the fact finding and decision in Parsudih P.S. Case No.141/89. Similarly, it would not be proper to hold such finding improbable without scrutinizing the judgment in appeal. But in the instant case, the learned Additional Sessions Judge disbelieving the finding of a competent court of law by holding the defence case as improbable story convicted the appellants which is unsustainable. Similarly, it would not be proper to hold such finding improbable without scrutinizing the judgment in appeal. But in the instant case, the learned Additional Sessions Judge disbelieving the finding of a competent court of law by holding the defence case as improbable story convicted the appellants which is unsustainable. The Trial Court in the instant case has committed gross error and illegality in convicting the appellants on the uncorroborated evidence of the informant who was found drunk when removed to the hospital and his evidence did not inspire confidence on the facts stated hereinabove. 12. In the facts and circumstances, a reasonable doubt is created that the occurrence did not take place in the manner presented by the informant in the instant case for which the appellants deserve benefits. 13. In the result after giving them benefit of doubt the judgment of conviction under Section 307 I.P.C. and the order of sentence passed against the appellants by the 1st Additional Sessions Judge, Jamshedpur in Sessions Trial No. 28/1991 is set aside. This appeal is allowed. The appellants are acquitted and they are discharged from the liabilities of their bail bonds.