Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 62 (JHR)

DASO MIAN v. STATE OF JHARKHAND

2006-01-24

M.Y.EQBAL, N.DHINAKAR

body2006
Judgment : ( 1 ) CR. Appeal No. 185/05 is by A-1, A-3 and A-4, whereas Cr. Appeal no. 186/05 is by A-5, A-2 and A-6 respectively in Sessions Case No. 282 of 1991/85 of 2002. The appellants in the above appeals will be referred as A-1 to A-6 in the same order as they were arrayed before the trial judge for the sake of convenience. All the accused Nos. 1 to 6 were tried for the offences punishable under Sections 302/34 and 307/34 IPC, The allegation against them in the charge is that they, in furtherance of their common intention, went to the field which was in possession of PW. 4 Hanif Mian, who is the son of the deceased, Rustam Mian and attacked the deceased, Rustam Mian with Tangi and Lathis and that during the course of said transaction, they also caused injury to PW. 4, Hanif Mian and that on account of the injuries suffered by the deceased, rustam Mian died at the Government Hospital, Jamtara where he was taken for treatment. The trial Judge, finding the accused guilty under Section 302/34 IPC. sentenced each one of them to imprisonment for life. The trial Judge also found Naushad mian (A-2) guilty under Section 324/34 IPC. The trial Judge convicted Rajan Mian (A-4)and Badan Mian (A-6) under Section 323/34 IPC. On being so convicted, a sentence of two years R. I. was imposed on Naushad mian (A-2) under Section 324/34 IPC. A sentence of one years R. I. was also awarded to rajan Mian (A-4) and Badan Mian (A-6) with a direction that the sentences will run concurrently. These appeals are against the said conviction and sentence. ( 2 ) THE facts of the case are : pw. 4 Hanif Mian is the son of the deceased, Rustam Mian. They were residing in the village Saharpur. The accused and the deceased staked claim for a landed property and, therefore, a proceeding under Section 145, Cr. P. C. was Initiated. The learned sub Divisional Magistrate, by his order passed in T. R. No. 172 of 1990, found that the deceased and PW. 4 were in possession of the said disputed land. The dispute as regards the land between the parties is said to be the motive for the unfortunate occurrence which occurred at 9. 00 a. m. on 31-7-1989. ( 3 ) ON 31-7-1989 at about 9. 4 were in possession of the said disputed land. The dispute as regards the land between the parties is said to be the motive for the unfortunate occurrence which occurred at 9. 00 a. m. on 31-7-1989. ( 3 ) ON 31-7-1989 at about 9. 00 a. m. , pw. 4 along with his father Rustam Mian was ploughing the disputed land. At that time, all the accused Nos. 1 to 6 went there. Accused Daso Mian was carrying a Tangi, whereas the other accused were armed with lathi, bows and arrows. The accused Daso mian (1) gave a blow to Rustam Mian and when PW. 4 Hanif Mian Intervened, he was also assaulted. Latif Mian (A-3) Instigated the others whereupon A-4 to A-6, who were armed with Lathis, chased Rustam Mian, the deceased, and caused injuries on his person by beating him on his head by lathi. The deceased fell down after sustaining injuries on the head. A-2 Naushan Mian caused injury on PW. 4 Hanif Mian with arrow and the said injury was received by hanif Mian on his chest as a result of which, blood started gushing out. The accused ran away from that place. Rustam Mian was placed on a Cart and taken to Police Station from where he was referred to Narayanpur hospital. At Narayanpur Hospital, after first-aid was given to the deceased, he was referred to Government Hospital, Jamtara for better treatment, but he succumbed to the injuries. ( 4 ) THE Investigating Officer reached the hospital at Jamtara and recorded the statement of PW. 4 Hanif Mian which stands marked as Ext. 6. The investigation in the crime was taken up and inquest was conducted. The inquest report is Ext. 1/3. After the inquest, a requisition was sent to the doctor for conducting autopsy. ( 5 ) ON receipt of the requisition, PW. 9 dr. Arun Kr Chakarborty conducted autopsy on the dead body and he found the following injuries on the dead body of deceased, rustam Mian : i. One stitched vertical wound 3" length over middle of right parietal bone. ii. One vertical stitched wound 2 in length 1" above the injury No. i. iii. One "l" shaped transverse stitched wound over anterior part of right parietal bone. iv. Clotted blood in right ear. v. Abrasion 1" x " over middle to left clevical with fracture underneath. ii. One vertical stitched wound 2 in length 1" above the injury No. i. iii. One "l" shaped transverse stitched wound over anterior part of right parietal bone. iv. Clotted blood in right ear. v. Abrasion 1" x " over middle to left clevical with fracture underneath. The doctor issued post mortem certificate (Ext. 2) with his opinion that the death was on account of shock and haemorrhage due to the injuries suffered by the deceased. ( 6 ) AFTER completion of the investigation, final report was filed against the accused. ( 7 ) WHEN questioned under Section 313, cr. P. C. on the incriminating circumstances appearing against them, the accused denied all the incriminating materials. They examined five witnesses on their side in order to show that the disputed land was in possession of accused Daso Mian (A-1) and that he was the owner of the land. ( 8 ) MRS. Mazumdar, learned counsel appearing for the accused-appellants in both the appeals strenuously contends that there should have been another statement at the police station at 11. 00 a. m. and the statement which was allegedly recorded at 4. 00 p. m. at Narayanpur Hospital cannot be a real First Information Report. Learned counsel further submits that the land in question was in possession of accused Daso Main on the date of the incident since he is the owner of the land and the said fact has been brought on record through the defence witnesses. Learned counsel further submits that when the accused were questioned under Section 313, Cr. P. C. , the 1st accused das Mian was not specifically questioned that he attacked the deceased with Tangi and therefore the trial Court erred in convicting the 1st accused. Learned counsel finally contends that even if the facts are taken to be true, the offence committed by the accused will only attract the provision of Section 304 (11), I. P. C. , since PW. 4 stated that the parties exchanged hot words just before the incident. On the above contention, we have heard Mr. Sumir Prasad and mr. Sekhar Sinha, learned APPs appearing on behalf of the State and perused the materials placed before us. 4 stated that the parties exchanged hot words just before the incident. On the above contention, we have heard Mr. Sumir Prasad and mr. Sekhar Sinha, learned APPs appearing on behalf of the State and perused the materials placed before us. ( 9 ) IT is not in dispute that Rustam Mian died on account of homicidal violence as the same stands proved by the evidence of the doctor who conducted autopsy and was examined as PW. 9 and issued post mortem certificate (Ext. 2 ). The evidence of the doctor and the injuries found, noted by him in ext. 2, post mortem certificate, conclusively establish that Rustam Mian died on account of the injuries suffered by him and that it was homicidal in nature. We, therefore, hold that Rustam Mian died on account of homicidal violence. ( 10 ) THE prosecution before the trial Court with a view to establish that the accused are responsible for the injuries and that those injuries were inflicted on the deceased rustam Mian in furtherance of their common intention, examined PWs. 1, 2 and 4 as witnesses to the occurrence. PWs. 1 and 2 are the cousins of the deceased and PW. 4 is the son of the deceased. On perusal of the evidence of these three eyewitnesses, it appears that on the date of incident, namely on 31-7-1989 at about 9. 00 a. m. , when the deceased was ploughing the disputed land and PW. 4 was present there, the accused went there who were armed with various weapons. According to the prosecution, A-1 was armed with Tangi and the other accused were armed with Lathi, bows and arrows. It is their evidence that the accused questioned the deceased as to how he could plough the land and thereafter attacked the deceased and when PW. 4 Intervened, he was also attacked. Their evidence further shows that when A-3 Latif Mian instigated to kill the deceased, the other accused attacked the deceased. The deceased started running from the place being chased by the accused and that he was overpowered by them. A-1 daso Mian caused injury with Tangi on the deceased and A-4 to A-6 beat the deceased on the head with Lathi as a result of which the deceased sustained injuries on hfs head and fell down. The evidence of PWs. 1, 2 and 4 appears to be convincing and cogent. A-1 daso Mian caused injury with Tangi on the deceased and A-4 to A-6 beat the deceased on the head with Lathi as a result of which the deceased sustained injuries on hfs head and fell down. The evidence of PWs. 1, 2 and 4 appears to be convincing and cogent. They not only support each other but their evidence is also supported by the medical evidence brought on record through the doctor (PW. 9) who conducted autopsy and proved the document Ext. 2, the post mortem certificate. It is. no doubt true, that the prosecution did not examine the two doctors who gave first aid to the deceased Rustam Mian at Narayanpur hospital and treated him at jamtara hospital, but the non-examination of the two doctors, by itself, will not make the evidence of the eyewitnesses suspect, since the occurrence had taken place in broad-day light and that the complaint was also given immediately thereafter. The fact remains that the deceased was removed from the scene of occurrence with a view to take him to the hospital and later he breathed his last at Jamtara hospital. The defence did not even suggest to any of the witnesses that the deceased did not die at Jamtara hospital. It is, therefore, clear that the deceased rustam Mian who suffered injuries in his village, was removed to the hospital and died at the hospital. If the witnesses were not present at the scene of occurrence, then the deceased could not have been taken to the hospital by them. We, therefore, accept the evidence of PWs. 1, 2 and 4. The contention of the counsel for the appellants that since the prosecution did not mark the injury report of PW. 4 and therefore the accused are to be acquitted, cannot be accepted by us. The prosecution could have done better by marking the injury report of PW. 4 to support his oral evidence, but the prosecution has not chosen to examine the doctors for the reasons best known to it, and that, by itself, will not preclude us from accepting the evidence of PWs. 1, 2 and 4. The prosecution could have done better by marking the injury report of PW. 4 to support his oral evidence, but the prosecution has not chosen to examine the doctors for the reasons best known to it, and that, by itself, will not preclude us from accepting the evidence of PWs. 1, 2 and 4. The fact that they are related to the deceased itself shows that they had no reason to give false evidence against the accused, since close relatives of the deceased will be interested in seeing that the real assailants are brought to book and will not leave the real assailants by implicating innocent persons. We, therefore, accept the evidence of PWs. 1, 2 and 4 that the appellants caused injuries on the deceased which ultimately resulted in his death. ( 11 ) WE will now take up the contention of the learned counsel appearing for the appellants. The first contention which we have already referred to above, is that the FIR in this case could have been given by PW. 4 even by 11. 00 a. m. According to the learned counsel, since PW. 4 admitted that he went to the police station and thereafter they were sent to the hospital by the policy authority, the compliant must have been lodged at the police Station but it has been suppressed. We find no substance in the said argument of the learned counsel. It is no doubt true that PW. 4 stated in his evidence that he went to the police station and that he and his father, the deceased, were immediately sent to the hospital, but is it is not even the case of the defence when the witnesses were examined in court by at least making suggestions that a statement was recorded by the police authorities at the police station when the witnesses went there after the occurrence. It can, therefore, be easily inferred from the facts and circumstances of the case that when the witnesses went with the injured Rustam Mian to the police station, the police Officer, who was the Incharge, must have felt that Rustam Mian requires immediate medical attention and therefore, he sent them to the hospital. The evidence of pw. 4 further shows that the police officer went to the hospital at Narayanpur and finding PW. 4 there, questioned him at 2. The evidence of pw. 4 further shows that the police officer went to the hospital at Narayanpur and finding PW. 4 there, questioned him at 2. 00 p. m. and the first statement was recorded at 4. 00 p. m. We, therefore, reject the contention of the learned counsel that was earlier complaint regarding the incident and Ext. 6 is not the FIR in this case. ( 12 ) THE second contention of the learned counsel that the land in question was in possession of the accused Daso Mian is only to be stated to be rejected because Ext. 5, the order passed by the Sub Divisional Magistrate under Section 145, Cr. P. C. , shows that the Magistrate found that the land in question was in possession of the deceased and his son PW. 4. Therefore, it cannot lie in the mouth of the accused during the trial to contend that the land was actually in possession of Daso Mian (A-1) and that he is the owner of the land. It is also not in dispute that Ext. 5 had become final as the said order has not been set aside or stayed by any appellate authority or Revisional Court. ( 13 ) THE third contention of the learned counsel that since the 1st accused Daso mian was not specifically questioned about his attack on the deceased with Tangi and therefore he is entitled to acquittal, is also to be stated to be rejected. A perusal of the questions put to the accused under Section 313, Cr. P. C. shows that though the Court did not specifically state Daso Mian (A-1)attacked the deceased with Tangi, has stated that Daso Mian and others attacked the deceased, caused injuries and those injuries resulted in his death. The accused Daso mian, therefore, cannot claim any prejudice on the ground that he was not specifically asked under Section 313, Cr. P. C. for his explanation as to why he used Tangi. We, therefore, reject this contention also. ( 14 ) WE have now to consider the nature of the offence committed by the accused. The accused Daso mian, therefore, cannot claim any prejudice on the ground that he was not specifically asked under Section 313, Cr. P. C. for his explanation as to why he used Tangi. We, therefore, reject this contention also. ( 14 ) WE have now to consider the nature of the offence committed by the accused. The contention of the learned counsel relying upon a stray answer given by the witnesses that there was exchange of hot words and therefore the accused are entitled to Exception (4) of section 300, I. P. C. , cannot be accepted by us, as we have already held that the land in question was found to be in possession of the deceased by the Sub Divisional magistrate in the order Ext. 5. The evidence further shows that on the date of incident when the witnesses were at the land, the accused went there after being armed with various weapons and attacked the deceased. It is but natural for the witnesses to question the accused if they had trespassed into the land which was in possession of the deceased and if some hot words were exchanged, the accused cannot take the benefit of Exception 4 of Section 300, I. P. C. We, therefore, reject the said contention also. On the evidence recorded by the trial Court we find that the accused have been rightly convicted by the trial Judge and sentenced under Section 302/34, I. P. C. as the accused had gone to the scene of occurrence armed with various weapons and had attacked the deceased. ( 15 ) IN the above background, we find the accused-appellants guilty under Section 302/34, I. P. C. and uphold their conviction under the said Section. So far the conviction under Sections 323 and 324/34, I. P. C. is concerned, since the prosecution did not examine the doctor who treated PW. 4 Hanif mian, we set aside the conviction of the accused under Section 323 and 324 read with 34, I. P. C. ( 16 ) IN the result, the conviction of the appellants under Section 302/34, I. P. C. and the sentence imposed upon them are confirmed. The conviction and sentence imposed on them under Sections 323 and 324 read with 34, I. P. C. are set aside. The appellant Nos. 2 and 3, namely, Latif Mian and rajan Mian in Cr. The conviction and sentence imposed on them under Sections 323 and 324 read with 34, I. P. C. are set aside. The appellant Nos. 2 and 3, namely, Latif Mian and rajan Mian in Cr. Appeal No. 185 of 2005 and all the three appellants, namely Basir mian, Naushad Mian and Badan Mian in Cr, appeal No. 186 of 2005, are on bail. They are directed to surrender before the trial court forthwith to serve out the remaining part of the sentence, failing which the trial court will take all coercive steps for their apprehension. With the above modification in conviction and sentence, this appeal is dismissed. Appeal dismissed. --- *** --- .