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2010 DIGILAW 948 (JHR)

Rajamuddin Mian v. State of Bihar

2010-09-28

D.G.R.PATNAIK, R.R.PRASAD

body2010
JUDGMENT R.R. PRASAD, J. (1) THE sole appellant Rajamuddin Mian was put on trial to face charges under Sections 302 and 452 of the Indian Penal Code and also under Section 27 of the Arms Act on the allegation that on the night of occurrence he along with other accused entered into the house of the informant and committed murder of his father, Karim Mian. THE trial court having found the appellant guilty under Sections 302 and 452 of the Indian Penal Code and also under Section 27 of the Arms Act convicted him. Consequently the appellant was sentenced to undergo rigorous imprisonment for life Against Judgment and Order of 2nd Addl. Sessions Judge, Deoghar, D/- 27-3-1991. der Section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for three years under Section 452 of the Indian Penal Code and also to undergo rigorous imprisonment for two years under Section 27 of the Arms Act. (2) THE case of the prosecution is that 15 years ago the appellant had married Zahiran Bibi, daughter of one Jageshwar Mian, who happened to be the full brother of the deceased Karim Mian. After the marriage, the appellant started living in in-law's house and was running a grocery shop whereas his wife and children were living in the village of the appellant. In course of time the appellant Rajamuddin Mian developed illicit relation with one girl namely, Basiran Bibi, daughter of Bhotali Mian and when this matter came to the knowledge of the informant Sakur Mian and his father, they scolded the appellant and also warned him not to keep illicit relation with that girl. In spite of that, the appellant went on having illicit relation with that girl. THErefore, a meeting was convened and the appellant was asked to sever off relation with the said girl, upon which the appellant without expressing anything left the village. After some days he came to the village on 14-5-1988 and stayed in the house of one Govind Singh where informant's father Karim Mian (deceased) and uncle Jageshwar Mian came and asked him to take decision as to whether he will maintain relation with Basiran Bibi and will marry her. Rajamuddin instead of giving reply started fleeing away but was caught hold of and then his hands and feet were tied down, upon which the appellant started weeping and then he was let off. Rajamuddin instead of giving reply started fleeing away but was caught hold of and then his hands and feet were tied down, upon which the appellant started weeping and then he was let off. On being let off while he was going, he extended threat to take revenge. Further case of the prosecution is that in between the night of 15/16-5-1988 while the informant was sleeping in his house along with children, he heard some sound and hence, woke up and found someone trying to break open the door. Meanwhile his father Karim Mian came to the courtyard and when flashed torchlight towards the roof they found Rajamuddin Mian and five unknown persons standing over there. The appellant- Rajamuddin Mian was also identified by unother family members. All the miscreants came down to the courtyard and challenged Karim Mian by saying that he claims himself to be the most powerful man and then fired shot but it did not hit him. By this time the miscreants succeeded in breaking open the door and then entered into the house. The informant as well as other family members tried to go out of the house but some miscreants caught hold of his father Karim Mian near the door of the house and inflicted Tangi blow. Meanwhile the appellant came there from inside the house and fired shot causing injury near the left waist as a result of which, his father fell down on the street and died. Thereafter the miscreants took away the household articles such as Cycle, Radio, Utensils, Cloths etc. Thereupon Sakur Mian gave his Fardbeyan at 9 a.m. on 16-5-1988 (Ext. 1/2), upon which a case was instituted which was taken up for investigation by the Investigating Officer, Ram Sharan Yadav (P.W.8), who held inquest on the dead body and prepared an inquest report (Ext.3). Thereafter he sent the dead body for post-mortem examination, which was conducted by Dr. N.K.Singh (not examined) and found the following injuries: " One round ragged margin, lacerated wound with charred margin all around the wound measuring 2" diameter on posterolateral aspect of left chest wall indicating wound of entrance. On dissection whole of left side of chest cavity was found full of blood clots, 5th, 6th and 7th ribs of left chest cavity was found fractured. The cartridge was found in the left side of the chest cavity. On dissection whole of left side of chest cavity was found full of blood clots, 5th, 6th and 7th ribs of left chest cavity was found fractured. The cartridge was found in the left side of the chest cavity. The left lung was punctured at several places and seven pellets were detected from the left lung measuring about 1/8" in diameter. Doctor issued post-mortem examination report with an opinion that cause of death was due to shock and haemorrhage on account of above-noted injuries caused by firearms (Gun shot). In absence of examination of the doctor, post-mortem report has been proved by a formal witness P.W.9 Jaishankar Poddar as (Ext.4). (3) IN course of investigation the INvestigating Officer Ram Sharan Yadav (P.W.8) also collected blood-stain earth from the place of occurrence and seized it under Ext.2. After completion of investigation, police submitted charge-sheet, upon which cognizance of the offences was taken and in due course when the case was committed to the Court of Session, charges were framed to which the appellant pleaded not guilty and claimed to be tried. (4) THE prosecution in order to bring the charges home examined as many as 9 witnesses. Of them P.W. 1 Latifan Bibi wife of the deceased, P.W.2 Md. Shamsher, son of the deceased, P.W.3 Shaharbano Bibi, daughter of the deceased. P.W.4 Naimur Bibi, daughter-in-law of the deceased, and P.W.5 Sakur Mian (informant) son of the deceased claimed themselves to be the eye-witnesses testifying that when they woke up on hearing sound of breaking door of the house, they came to the courtyard and saw this appellant and other unknown persons standing on the roof of the house, who came down to the courtyard of the house and on being exhorted by the appellant one of the miscreants gave tangi blow on the head of the deceased and then the appellant fired shot hitting near the waist of the deceased resulting into his death. THE witnesses, namely, Shamsuddin Ansari, P.W.6 and Jumadali Mian, P.W.7 are the hearsay witnesses, who derived the knowledge from the eye-witnesses. P.W.8 Ram Sharan Yadav is the Investigating Officer whereas P.W.9 Jaishankar Poddar is an Advocate's clerk who has proved the post-mortem report as Ext.4. THE witnesses, namely, Shamsuddin Ansari, P.W.6 and Jumadali Mian, P.W.7 are the hearsay witnesses, who derived the knowledge from the eye-witnesses. P.W.8 Ram Sharan Yadav is the Investigating Officer whereas P.W.9 Jaishankar Poddar is an Advocate's clerk who has proved the post-mortem report as Ext.4. The trial Court having placed implicit reliance on the testimonies of the eye-witnesses did find the appellant guilty for an offence under Section 302 and 452 of the Indian Penal Code as also under Section 27 of the Arms Act and consequently passed the order of sentence as aforesaid. (5) BEING aggrieved with the judgment of conviction and order of sentence, the appellant has preferred this appeal. (6) LEARNED counsel appearing for the appellant submits that testimonies of the eyewitnesses are contradictory to each other on the material points creating doubt on their versions of seeing the appellant committing murder. Moreover, the testimonies of those witnesses never get corroboration from the medical evidence as the Doctor has found only one gun shot injury on the postero-lateral aspect of the left chest whereas case of the prosecution is that the deceased apart from being inflicted with the gun shot injury by firearms was also assaulted by tangi on his head and hence, the trial Court has erred in holding the appellant guilty as the prosecution has completely failed to prove the guilt of the appellant beyond all reasonable doubts. Heard learned counsel appearing for the State also. (7) HAVING heard learned counsel appearing for the parties and on perusal of the record I do find that it is the case of the prosecution that the appellant had married Zahiran Bibi cousin of the informant 15 years ago. After the marriage the appellant started living in in-law's house where he was running a grocery shop whereas his wife and children were living in his village home. In course of time the appellant developed illicit relation with one girl namely, Basiran Bibi and when this matter came to the knowledge of the informant and his father (deceased) they scolded him and also warned him not to keep illicit relation with that girl. But in spite of that, the appellant went on having association with that girl. Thereupon he was told as to why he indulges himself in such illegal activities rather it will be better for him to get marry her. But in spite of that, the appellant went on having association with that girl. Thereupon he was told as to why he indulges himself in such illegal activities rather it will be better for him to get marry her. Thereupon the appellant went to his house and when he came back just one day before the occurrence he was caught hold of, his hands and feet were tied down and was brought to the house of his father-in-law (brother of the deceased) where he started weeping and then he was allowed to go. According to prosecution this was the genesis of the occurrence and due to that reason the appellant along with unknown persons committed murder and also looted away several household articles from the house of the deceased. Admittedly, all the eye-witnesses are family members of the deceased and, therefore, before placing reliance the testimony of the witnesses needs to be scrutinized cautiously and carefully. (8) AS per the evidence of P.W.5 while he was sleeping on the Varanda of the house along with his father (deceased), mother (P.W. 1), sister (P.W.3), they woke up on hearing sound of breaking of the door and came to courtyard from where he as well as his father flashed torch light and in that light, they saw this appellant and five unknown persons standing on the roof of the house who came down to the courtyard and then the appellant fired shot upon his father which did not hit him and then his father started fleeing away but one of the miscreants in that course gave tangi blow to the deceased and thereupon this appellant fired shot causing injury near the waist as a result of which his father fell down on the street passing through the house and died. This witness though in his evidence has assigned specific role to the appellant of causing firearms injury to the deceased but he in his cross-examination has stated that the miscreants as soon as came down to the courtyard took away the torch light which he as well as his father were holding and, therefore, any specific accusation made subsequent to that would be susceptible to doubt when it was a dark night. However, as per the evidence of this witness I do find that occurrence took place in the courtyard while the deceased was fleeing away on being given tangi blow by unknown miscreant the appellant shot at him, as a result of which he fell down on the street passing through the house but the evidence of P.W. 1, who is none else than the mother of P.W.5, as has been elicited in the cross-examination, is that when the miscreants came down to the courtyard she as well as her son (P.W.5) entered into the room where she as well as other persons present over there including P.W.5 were locked in a room whereas the deceased climbed on the roof of the house and in that event neither she nor her son (P.W.5) would have been in a position to see what had happened after the deceased came to the roof of one of the rooms, though P.W. 1 has testified that the appellant shot him dead in the courtyard. But this piece of evidence would always be susceptible to doubt in view of the aforesaid evidence, elicited in the cross-examination. Moreover, it would be significant to note here that as per version of P.W.I it was Rajamuddin Mian, who made an attempt to give blow by tangi which did not hit whereas as per the evidence of other witnesses, some other miscreant had given tangi blow upon the deceased. The evidence of this witness (P.W.I) to the effect that the deceased climbed on the roof of the house when the miscreants came down to the courtyard even get support from P.W.3 Shaharbano Bibi (daughter-in-law) who has testified that when the miscreants came down to the courtyard her father (deceased) rushed to the roof of the house where cow dung cake had been kept for hiding himself but the appellant shot at him as a result of which her father fell down from the roof over the street, though this witness has testified in her evidence that when the miscreants came down to courtyard they kept her and other persons confined in a room and in that view of the matter, she would definitely be not in a position to see what had happened over the roof of the house. The aforesaid fact of putting the family members confined in a room gets support from the evidence of P.W.2 Md. The aforesaid fact of putting the family members confined in a room gets support from the evidence of P.W.2 Md. Shamsher (son of the deceased), who has testified that the miscreants got them confined in a room and then his father was done to death. But at the same time this witness has also testified that when the appellant shot his father dead in the courtyard all the family members were present in the courtyard. But both the statements appear to be quite contradictory and, therefore, it is difficult to place reliance on the evidence of this witness that he saw the appellant firing shot upon the deceased resulting into his death. Similar is the statement of P.W.4 Naimur Bibi (daughter-in-law of the deceased) who has testified that appellant and other miscreants came down to courtyard and the appellant fired shot upon the deceased causing his death but it again raises doubt in view of the testimony of P.W.I as well as P.W.3, who have testified, as has been pointed out above, that when the miscreants came down to the courtyard the deceased climbed to the roof of the house where he was shot at as a result of which he fell down over the street passing through the house. Having given anxious thought on the testimonies of the witnesses particularly on the point that when the miscreants came down to the courtyard the deceased rushed to the roof of the house and that before the deceased was done to death the inmates including the witnesses were kept confined in a room raises strong doubt that they saw appellant committing murder of the deceased. Moreover, testimonies of eye-witnesses, particularly P.Ws. 2, 3, 4 and 5 testifying that the deceased before being shot at was also given tangi blow on his head does not find corroboration from the post-mortem report which has been marked as Ext.4 as the Doctor does not seems to have found any other injury except gun shot injury. Moreover, testimonies of eye-witnesses, particularly P.Ws. 2, 3, 4 and 5 testifying that the deceased before being shot at was also given tangi blow on his head does not find corroboration from the post-mortem report which has been marked as Ext.4 as the Doctor does not seems to have found any other injury except gun shot injury. So far motive is concerned, it is said that as the appellant was told by the deceased to sever off relation with the girl, this offence has been committed but at the same time it has also been testified by P.W.4 that the deceased had been told either to sever off illicit relationship which he had developed with that girl or to marry her and in that view of the matter, the appellant who was given free hand would not carry any grudge to commit murder. However, after considering the entire facts and circumstances, it appears that dacoity was committed in the house of the deceased and in that course, the miscreants committed murder of the deceased. (9) UNDER the aforesaid situation, I do find that the trial court did not take into consideration the entire evidences in the right perspective and hence committed illegality in holding the appellant guilty for the charges levelled against him, rather the prosecution seems to have failed to prove the charges beyond all reasonable doubt. Therefore, the appellant, in the facts and circumstances, deserves benefit of doubt. Accordingly, the judgment of conviction and order of sentence passed by the trial Court is set aside and this appeal is allowed. The appellant is acquitted of the charges levelled against him. Accordingly, he is directed to be released forthwith if not wanted in other case. (10) THUS, this appeal is allowed. D. G. R. PATNAIK, J. : 15. I agree. Appeal allowed.