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2009 DIGILAW 825 (JHR)

Ayub Mian v. State of Jharkhand

2009-05-23

JAYA ROY

body2009
JUDGMENT The aforesaid two appellants have preferred this appeal against the Judgment dated 9.1.2004 and order of conviction and sentence dated 12.1.2004 passed by Sri Surendra Nath Pandey, Ist Additional Sessions Judge, Jamtara, in Session Case No.438 of 2001 / 4 of 2003 whereby both the appellants have been convicted under Section 304 Part-II I.P.C and sentenced to undergo R.I. for seven years. 2. The brief facts leading to this appeal is that on 15.3.01 at 9.30 P.M. Mazlum Mian (informant) gave his beyan at Mihizam Police Station stating therein that there was a quarrel between his daughter Makina Khatoon and daughter of Ali Hussain ( the appellant No.2) few days ago for taking bath in the pond. On 15.3.01 at 8.30 P.M. when the informant has gone to the house of his Uncle Ayub Mian for some help for the marriage of his daughter, his cousin Ali Hussain came out from his house and started abusing him. Hearing the Hulla, his younger brother Hussain Mian came there and protested Ayub Mian and Ali Hussain and told them not to abuse his brother. Ali Hussain and Ayub Mian went back to their house and thereafter Ayub came with a Tangi and Ali Hussain came armed with a Sabal and they started assaulting Hussain Mian who having injury on his head, fell down. When the informant went to protect his brother, he was also assaulted by the accused persons. On the basis of the fardbeyan, a case was instituted under Section 341, 323, 324and 307/34 I.P.C. Later on when Hussain Mian died, the charge was added under Section 302 I.P.C. against the accused persons. 3. After investigation I.O. has submitted the charge sheet under Section 341, 323,302/34 I.P.C. against the appellants. After taking cognizance, the case was committed to the Court of Session and thereafter the same was transferred to the Ist Additional Sessions Judge, Jamtara for trial. The defence plea that they have been falsely implicated in this case. 4. The prosecution has examined six witnesses and has proved the signature of Mazlum Mian Ext-1, Post-mortem report Ext-2, inquest report Ext-3, fardbeyan Ext-4, signature of Doctor S.Mondal Ext-5, signature of Mubarak Ansari on Ext-3 is Ext.3/1. The defence has produced four witnesses and has proved a map as Ext-A. 5. 4. The prosecution has examined six witnesses and has proved the signature of Mazlum Mian Ext-1, Post-mortem report Ext-2, inquest report Ext-3, fardbeyan Ext-4, signature of Doctor S.Mondal Ext-5, signature of Mubarak Ansari on Ext-3 is Ext.3/1. The defence has produced four witnesses and has proved a map as Ext-A. 5. The prosecution witness No.1 Hasina Bibi wife of the deceased, P.W.2 Fulatun Bibi is the wife of the informant, P.W.3 Mazlum Mian is the informant, P.W.4 Guffar Ansari who was tendered by the prosecution, P.W.5 is the Doctor and P.W.6 is the I.O. This shows the prosecution witnesses who are witness of the alleged occurrence i.e. P.Ws. 1, 2, and 3 are interested witnesses as they are closely related with the deceased. 6. Mr.Mahesh Tewary the learned counsel of the appellants submits that the manner of occurrence as giving in the fardbeyan was not fully corroborated by the medical evidence. P.W. 5 the Doctor has found two lacerated injuries and opined that death was due to the said injuries. The Doctor has further stated that the injury may be caused by blunt Kulhari. Thus the allegation against the appellant No.1 that he had assaulted by Tangi can not be sustained. 7. It is further submitted that according to the evidence of P.W.1 some persons were present at the time of the occurrence and they were witness of the occurrence as eye witness. But utter surprise not a single independent witness has been examined by the prosecution. 8. It is next contended though according to the prosecution Mazlum Mian the informant has also received injury but no medical report of injury of Mazlum Mian was produced or proved by the prosecution. This also casts a doubt on the prosecution story. It is brought to my notice by the learned counsel for the appellant that though both the appellants were arrested just after the alleged occurrence from their house but no weapon was seized either from them or from their house. 9. From perusal of the evidence of the Doctor P.W.5, I find the doctor has found two antimortem injuries on the head of the deceased and opined the same may be due to Blunt Kulhari. The Doctor in his cross examination in Para 5 has further stated that Kulhari or Tangi both are sharp edge weapon but they can be both sharp and blunt. The Doctor in his cross examination in Para 5 has further stated that Kulhari or Tangi both are sharp edge weapon but they can be both sharp and blunt. Mr.S.K. Srivastava, the learned counsel appearing for the State has submitted that the injuries were caused by the blunt portion of the Tangi. But it is not the case of the prosecution that the appellant No.1 has assaulted by the blunt portion of the Tangi. On the contrary the defence witness Rajak Ansari who is the brother of the deceased, said that Hussein Mian the deceased at the time of alleged occurrence was drunked and he wanted to play in the Moharam Akhara and he had fallen down as he was under the influence of the liquor and sustained injury and due to that, he died in the Hospital. Thus, it is very clear that the testimony of the eye witnesses does not corroborate with the Medical evidence. 10. In the case at hand, according to the prosecution Ali Hussain the appellant No.2 had asaulted by Sabal to the deceased only once. But there are two injuries on the head caused by the blunt substance. Therefore the contradictory statements of the witnesses regarding the manner of the assault and genesis of the occurrence cast a great doubt on the prosecution case. Thus it can not be said that the eye witness who are interested witness are at all trust worthy. 11. No doubt it is well settled principle that the evidence of the interested witnesses can not be discarded only on the ground that the witnesses are close relative of the decease. But all that is necessary is that the evidence of the interested witness should be subjected to careful scrutiny and accepted with caution. 12. From perusal of the evidence of the witnesses and the record of the case and considering over all view of the matter, in my opinion, the prosecution has not able to prove the charge under Section 304 Part-II I.P.C. against the appellants beyond all reasonable doubt. In this situation the appellants should get the benefit of doubt. Accordingly, they are given benefit of doubt as such I acquit both the appellants from the charge under Section 304 Part-II I.P.C. leveled against them and allowed this appeal. The appellants are discharged from the liabilities of their bail bonds.