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2007 DIGILAW 657 (PAT)

Mahmood Alam Alias Md. Ali v. State Of Bihar

2007-04-02

INDU PRABHA SINGH

body2007
Judgment Indu Prabha Singh, J. 1. All the three applicants have been convicted under sec. 304, Part II read with Sec.34 cf the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years each. 2. Prosecution case, in short, is that sairun Nisha, informant of the case lodged fardbeyan on 21.01.1986 at 6 p. m. in the sadar Hospital, Purnea that ten days ago her husband came back from Dagurua Hat after purchasing rice and pulse after Sun set. She was sitting at her darwaza. The husband of the informant went inside the angan. Behind him accused Nazam. Sayyad, mahmood and Rakib came over there armed with lathi and bhala. They began to assault riyazuddin as a result of which he fell down and raised alarm. The informant rushed over there and laid herself upon the body of her husband with a view to save him whereupon accused Sayyad assaulted her by means of lathi. Witnesses of the village assembled over there and the accused persons took to their heels. The informant took her husband before the sarpanch of Bardaha gram Panchayat where the case was lodged. The sarpanch forwarded the injured to mahamadia Ichalo Govt. Hospital for treatment. The husband of the informant was treated over there but subsequently he was forwarded to Purnea Sadar Hospital for better treatment. The motive for the alleged occurrence is said to be the land dispute. The husband of the informant was unconscious in the Purnea Sadar Hospital and as such she lodged her fardbeyan. On the basis of the fardbeyan FIR was instituted and the police took up investigation and submitted charge-sheet against the appellants. On the basis of the charge-sheet cognizance was taken and the case was committed to the court of Session. The appellants pleaded not guilty. 3. Prosecution in support of its case examined altogether 13 witnesses, PW1 is Md. Mobin, PW2 is Abdul Sattar, PW3 is Ganga prasad Chouhan, PW4 is Mohiuddin, PW5 is Md. Safique, PW6 is Sairun Nisha, informant, PW7 is Dr. Parmanand Keshri, who had examined the injured Riazuddin on 12.01.1986 at the State Dispensary Ichalo, pw8 is Md. Yasin Ansari who had proved the bed head ticket of Riyazuddin, Ext.4, pw9 is Dr. K. K. Das who had conducted post-mortem on the dead body of Sk. Riazuddin on 22.01.1986 at Purnea Sadar hospital, PW10 is Md. Parmanand Keshri, who had examined the injured Riazuddin on 12.01.1986 at the State Dispensary Ichalo, pw8 is Md. Yasin Ansari who had proved the bed head ticket of Riyazuddin, Ext.4, pw9 is Dr. K. K. Das who had conducted post-mortem on the dead body of Sk. Riazuddin on 22.01.1986 at Purnea Sadar hospital, PW10 is Md. Samiruddin, sarpanch of Basdaha Gram Panchayat, pw11 is Md. Gayasuddin, brother of riazuddin. PW12 is Sri Bir Bahadur Limba, a formal witness who had proved the FIR. Ext.10 and PW13 is Sri Balmiki Prasad singh, a formal witness who had proved the case diary Ext.11. PW6, Sirun Nissa (Informant) who is wife of the deceased riazuddin has fully supported the prosecution case and the version of her fardbeyan. On the date of occurrence at about 6.30 p. m. she was in her house and her husband came from and entered in the courtyard. The accused persons namely Mahmood, Sayeed, raquib and Nizam came behind him. They all started assaulting her husband. Her husband ran away. Thereafter they followed him. He went near the road and they started assaulting her husband by lathi and bhala. According to her, accused Mahmood assaulted him with lathi. She has stated that when she went to save her husband she was also assaulted by accused Sayeed by lathi and fists and slaps. They also dashed her to the ground. On hulla the villagers, mohiuddin, Sattar and Mobin came there and saw the occurrence. Having seen them the accused persons fled away. Next day she went along with her husband and brother-in-law to the panchayat office where statement of her husband was recorded. From there her husband was brought to Ichalo hospital where he was treated and referred to Purnea Sadar Hospital. When he was brought to Purnea Hospital he was unconscious. In the hospital she gave her statement to the Sub-Inspector and put her thumb impression over it. She has also stated that investigation was not done properly by the investigating agency. Thereafter she filed a protest petition in Purnea Court. In cross-examination she denied that she did not know that her husband and his brother had any dispute regarding registration of land of their step mother. She also denied that she did not know whether her husband assaulted the accused Md. Alam for which Alam had lodged a counter case. 4. Pw1, Md. Mobin came on hulla. In cross-examination she denied that she did not know that her husband and his brother had any dispute regarding registration of land of their step mother. She also denied that she did not know whether her husband assaulted the accused Md. Alam for which Alam had lodged a counter case. 4. Pw1, Md. Mobin came on hulla. He saw the accused persons fleeing away after coming out from his courtyard. He also saw nizammudin, Sayyad, Mahmood and Latif armed with lathi and bhala. According to him, the accused persons assaulted riazuddin (deceased) near the neem tree on the road. Safique, Sattar, Mohsin, mehruddin etc. also came there. All of them tried to pacify the matter. Riazuddin fell down on the road after receiving injury and he was carried to his house. Next day he was taken to Gram panchayat where he gave his statement. Thereafter he was taken to Ichalo Hospital and from there he was referred to Sadar Hospital, Purnea where he died. In his cross-examination he has denied that he had knowledge about the land dispute between the parties. 5. Pw2, Abdul Sattar also supported the version of PW1. According to him he saw the deceased was chased from the courtyard by the accused persons and was assaulted near the neem tree i. e. on the road. In cross-examination he was given suggestion that he had stated before the police that he came on hulla and he found Riazuddin unconscious and he had not seen him being assaulted which he denied. PW3 is a witness of the inquest. He has proved Ext.2. PW4, mohiuddin also supported the version of pws 1 and 2 and also assaulted on the deceased near neem tree. He denied the suggestion about the knowledge of counter case. 6. Pws 8 and 9 have also supported the case of the prosecution and the version of the PWs 1, 2, 3, 4 and 6. PW7 Dr. Pramod keshari had examined Sk. Riyazuddin on 12.1.1986 and found the following injuries on his person: (I) Injury at frontal head by hard and blunt substance 1" X 1/4" x 1/4". (II)Injury on the left arm 1" x 1/4" x 1/4" abrasion by hard and blunt substance (III) Injury abrasion on left elbow region 1/2" X 1/4" x 1/ 4" by hard and blunt substance. Riyazuddin on 12.1.1986 and found the following injuries on his person: (I) Injury at frontal head by hard and blunt substance 1" X 1/4" x 1/4". (II)Injury on the left arm 1" x 1/4" x 1/4" abrasion by hard and blunt substance (III) Injury abrasion on left elbow region 1/2" X 1/4" x 1/ 4" by hard and blunt substance. (IV)Injury on the right arm inflammation 1" x 1/2" x 1/2" by hard blunt substance. In the opinion of the doctor the injuries were simple in nature caused by lathi portion of bhala or lathi. 7. Pw 10, Md. Samiruddin, sarpanch of basdaha Grampanchayat has confirmed that he got the statement of Riyazuddin (Deceased) recorded on his L. T. I. was taken. He found his condition serious, therefore, he sent him to the hospital for his treatment. PW11, brother of the deceased has stated that on 11.01.1986 in the evening the accused persons brought Riyazuddin from his house forcibly near neem tree on the road. Thereafter Mahmood assaulted on his head with lathi side of bhala. Accused Sayyad, raquib and Nizamuddin also assaulted him with lathi. Witnesses came and saw the occurrence. The injured was brought to the office of sarpanch where his statement was recorded. Thereafter he was sent to Ichalo hospital for his treatment. When his condition became serious he was referred to purnea Hospital where he died. In his cross-examination he has accepted that his step brother Siyauddin was working with the accused and he had kept the deed of land in the custody of Sayyad and Nizammuddin. Thereafter he left his service and demanded the wage and registered deed from them. A day before the occurrence his brother riyazuddin had also gone to them and requested Sirajuddin for wages and deed papers. He has also stated that Mahmood alam had filed a case against him stating therein that he had assaulted him and snatched his money. He has denied the suggestion that he and his brother (deceased)had land dispute with the accused persons. 8. The defence has also examined DW1, dr. Bajrang Bahadur Singh who had examined Md. Alam on 11.01.1986 in Purnea hospital and found the following injuries on his person: (i) One cut wound 4" x 2" on the head posterior aspect right side. Depth of the wound was up to bone; (ii)One bruise with swelling 3" x 3"x2" on the light shoulder. Bajrang Bahadur Singh who had examined Md. Alam on 11.01.1986 in Purnea hospital and found the following injuries on his person: (i) One cut wound 4" x 2" on the head posterior aspect right side. Depth of the wound was up to bone; (ii)One bruise with swelling 3" x 3"x2" on the light shoulder. (iii) One bruise with swelling 4" x 3" on the back right side; (iv) Bruise with swelling 3" x 2" on the right thigh. In the opinion of the doctor the injuries except No. (i) were simple in nature. 9. Learned counsel for the appellants has submitted that in this case manner of assault and place of occurrence have not been proved and the same has been contradicted by the prosecution witnesses itself. The place of occurrence which is the house of the informant has not been established. According to the informant the occurrence took place in the house and courtyard. According to PW1 the mar-pit took place under the neem tree, as such, the place of occurrence has not been proved. Ext.6 which is alleged statement of the deceased Riyazuddin recorded by sarpanch is a forged document executed on 12.01.1986 and on this document no case was instituted even though it is said to have been forwarded to the CJM but it was not sent to the office of the CJM, as there is no proof for the same on the record. A counter case was also instituted by Md. Mahmood Alam in which it was stated that the accused persons were also assaulted. The FIR was lodged on 21.01.1986 at Purnea Hospital where he was admitted. The assault on the accused persons has not been explained by the prosecution witnesses. It has been suppressed. It has been submitted that the deceased was alive for 11 days but his statement was not recorded by the Magistrate. In this connection learned counsel for the appellants has relied on a decision of the Apex Court in the case of The State of Assam V/s. Bhelu Sheikh and others in which it was held that there was no clear and cogent evidence to show that accused had caused injuries to victims and even the statement of the deceased was not recorded by the Magistrate even though he was alive for nine days after occurrence and delay was not explained. The appellant deserved acquittal. 10. The appellant deserved acquittal. 10. On the other hand learned counsel for the informant has also submitted there are cogent and consistent evidence of PWs 1, 2, 4, 5, 6 and 11 who had supported the case of the prosecution PW 7, the doctor initially examined the deceased at Ichalo Hospital on 12.01.1986 PW9, Dr. K. K. Das held post-mortem examination on the deceased and from his evidence the case of the prosecution is proved. PW10, sarpanch is an independent witness. He had no concern either to the accused persons or the informant. He has also stated that the deceased was brought in an injured condition by his wife and brother at 8 a. m. and his statement was recorded and was forwarded to the c. J. M. The brother of the deceased PW11 was made accused in a counter case filed by accused Alam in which he was acquitted. As such, it appears that a false case was instituted to save the skin from the present occurrence. Lastly it has been submitted that the neem tree is near the house of the deceased and the road is also connected there, so it might be that the deceased ran near the neem tree to save the assault. 11. Considering the submission of the learned counsel and in the facts and circumstances of the case it is evidently clear that the prosecution has not established the place of occurrence and the manner of assault. According to PW6, her husband entered in her house after coming from the hat and the appellants forcibly armed with lathi and bhala entered in her house and badly assaulted her husband. This shows that the occurrence took place inside the house. She has specifically stated that when appellants started assaulting him she laid down on the body of her husband and she was also assaulted by the accused persons. This shows that the occurrence took place in the courtyard. She has also stated that when her husband came in the angan the accused persons came behind him and later they chased him up to the road near the neem tree and started assaulting her husband. The occurrence took place on 11.01.1986 whereas the fardbeyan was recorded on 21.01.1986. No explanation for the delay has been given. She has also stated that when her husband came in the angan the accused persons came behind him and later they chased him up to the road near the neem tree and started assaulting her husband. The occurrence took place on 11.01.1986 whereas the fardbeyan was recorded on 21.01.1986. No explanation for the delay has been given. Ext.6, statement of deceased, which has been claimed to have been recorded on 12.01.1996 had not been received in the C. J. M. Office. Though PW10, sarpanch stated that he had forwarded the same to the CJM, but there is nothing to show that what action was taken by the cjm. No proof of Court seal etc. were there to prove the genuinity of this statement. As such possibility of its fabrication cannot be ruled out. 12. Ext.3 is injury report issued by PW 7 who examined the injured on 12.01.1986. It appears that the injury report (Ext.3) was sent to Sadar P. S. but there is nothing to show that it was received by the police station and no action was taken by the police officer on it. The register which is maintained in the hospital has not been produced in support of issue of injury report. No time of examination is mentioned on it. As such, it also appears to be a fabricated document. That apart the investigating officer has also not been examined. If he would have been examined, the place of occurrence would have been established. The written statement given before the sarpanch cannot be treated as dying declaration, as claimed by the informant as its genuinity has already been disputed. It is also evident that the version of the informant, PW6 in her fardbeyan and during her deposition before the Court below are different and she has improved facts during the trial before the court below. It is also evident that the condition of the deceased was serious but for ten days the family members did not take care to inform the police about the occurrence. 13. As discussed above, it is evident that the prosecution could not prove its case beyond all reasonable doubts and the appellants deserve benefit of doubt. Accordingly, they are acquitted of the charges levelled against them. The order of conviction and sentence passed against them is set aside and they are discharged from the liability of bail bonds. 13. As discussed above, it is evident that the prosecution could not prove its case beyond all reasonable doubts and the appellants deserve benefit of doubt. Accordingly, they are acquitted of the charges levelled against them. The order of conviction and sentence passed against them is set aside and they are discharged from the liability of bail bonds. In the result, this appeal is allowed. Appeal allowed.