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2012 DIGILAW 1237 (PAT)

Sheikh Ahmad v. State Of Bihar

2012-09-04

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J.—The four appellants have been found guilty and convicted by the trial court in Sessions Trial No. 381 of 1987 vide order dated 01st September, 2000 by the 2nd Additional Sessions Judge, West Champaran, Bettiah. The appellant Sheikh Ahmad and Sheikh Jajul have been convicted to undergo R.I. for six months under Section 323 of the I.P.C. Sheikh Serajul has been convicted to undergo rigorous imprisonment for two years under Section 324 of the I.P.C. and R.I. for one year under Section 27 of the Arms Act. Sheikh Rauf has been convicted to undergo R.I. for one year under Section 324 of the I.P.C. 2. The prosecution case has been instituted by Amirul Dewan @ Gulli (P.W.6) on 27.06.1983. The fardbeyan reveals that the informant was removing the manure which was supposedly lying outside his house. There was an objection by appellant no. 3 Sheikh Serajul. There was exchange of hot words and thereafter when the other persons namely Mukhtar Mian (P.W.2), Kapil Dewan (P.W.5) and Izaharul Dewan (P.W.8) went to the place of occurrence, they were assaulted by the appellants. It is alleged that Sheikh Jajul assaulted Kapil Dewan on the head by a lathi. Sheikh Ahmad assaulted Kapil Dewan with a Bhala on his head. Sheikh Rauf assaulted Kapil Dewan on his hands and legs by a lathi and Mamul Hassan gave a Barchhi blow to Sheikh Jajul and also assaulted Kapil Dewan. It is alleged that Sheikh Serajul fired which hit Mukhtar Mian (P.W.2) and Israil Mian (P.W.1). The reason for the dispute was the manure that was lying in the open area. The said manure was claimed by Sheikh Serajul whereas, the informant claims that the manure was lying in front of his house and, therefore, it belonged to him. 3. Altogether eight witnesses have been examined in this case. P.W.1 Isarail Mian an injured witness has turned hostile. It has been pointed out by the Counsel for the appellants that this witness states that the manure belonged to Sheikh Serajul. 4. P.W.2, Mukhtar Mian has supported the prosecution version. At paragraph 9, he states that firing took place between the parties and both of them that is informant party as well as the appellants assaulted each other. It has been pointed out by the Counsel for the appellants that this witness states that the manure belonged to Sheikh Serajul. 4. P.W.2, Mukhtar Mian has supported the prosecution version. At paragraph 9, he states that firing took place between the parties and both of them that is informant party as well as the appellants assaulted each other. It is important to note that P.W.2 has stated that the house of Sheikh Serajul is one and half feet away from the place where the manure was stored. 5. P.Ws. 3 and 4 namely, Gopal Prasad and Kalam Mian @ Abul Kalam are formal witnesses. They have proved Exhibit-1 i.e. the writing of the Officer-in-charge and the formal First Information Report respectively. 6. P.W.5 Kapil Dewan is said to have been assaulted by the appellant Sheikh Serajul. Before the Trial Corut, he has supported the case of the prosecution. He has admitted that a counter case has been filed by Sheikh Serajul in which P.W.5 Kapil Dewan and the informant are accused. According to P.W.5 the manure belongs to Sheikh Serajul. He admits that there was exchange of hot words and both the parties had assaulted each other. It is important to note that this witness in his cross-examination has stated that Sheikh Rauf had assaulted him. It has been argued that the appellants Sheikh Ahmad and Sheikh Jajul cannot be convicted for assault on Kapil Dewan as he has denied this aspect of the matter. 7. P.W.6 Amrul Dewan @ Gulli, the informant of this case. He claims that the land where the manure was lying is Gair Mazarua Aam land. The informant claims that the manure was stored by him about a month prior to the occurrence. He admits that a counter case has been instituted by the appellant Sheikh Serajul. He also admits that the fardbeyan was recorded in the hospital. According to this witness Kapil Dewan was assaulted by two persons only. The evidence of P.W.6 would also disclose that none of the persons, who were assaulted, fell to the ground because of the assault. 8. P.W.7 Nurul Hoda is a chance witness, he supports the prosecution case that there was an occurrence in which several persons were assaulted. 9. P.W.8 Izaharul Dewan is injured in this case. He was assaulted by Mamul Hassan with the Barchhi on the left side of his torso. 8. P.W.7 Nurul Hoda is a chance witness, he supports the prosecution case that there was an occurrence in which several persons were assaulted. 9. P.W.8 Izaharul Dewan is injured in this case. He was assaulted by Mamul Hassan with the Barchhi on the left side of his torso. Mamul Hassan has not been tried along with the other appellants in this case. This witness supports the manner of occurrence and also supports the facts that there is a counter case and the dispute with respect to removing the manure. 10. The defence has exhibited the First Information Report instituted by Sheikh Serajul as well as the chargesheet. The witnesses accept that there is a counter case and that the trial was in progress at the time when these witnesses were giving evidence in the present case. Nearly all the prosecution witnesses have stated that there is a counter case filed by Sheikh Serajul. It is also admitted by them that there was injury on both sides inasmuch as the informant has stated that Sheikh Serajul had recorded his fardbeyan in the hospital. The fact that the injury report has not been exhibited or the doctor has not been examined looses its importance, when the occurrence and its counter version is admitted by the witnesses. 11. It has been argued on behalf of the Counsel for the appellants that the Investigating Officer ought to have been examined in this case to establish the place of occurrence and to give his independent findings with regard to the statements of the witnesses under Section 161 of the Code of Criminal Procedure. It is further submitted that it is admitted by the prosecution witnesses that the manure was lying on the land which belong to Sheikh Serajul. Counsel for the appellants, therefore, submits that there would be a presumption that the informant and his witnesses were interfering with the possession of the said manure and, as such, the appellants had a right to protect their property and stop the informant from removing the same. It is argued that on the basis of the First Information Report and the evidence, the Court may hold that the informant was the aggressor in this case, and therefore, it cannot be said that these appellants were responsible for the occurrence. 12. It is argued that on the basis of the First Information Report and the evidence, the Court may hold that the informant was the aggressor in this case, and therefore, it cannot be said that these appellants were responsible for the occurrence. 12. Considering the entire gamut of facts, which has come in this case, two things are obvious: firstly, that there was an occurrence in which both sides received injuries and secondly, the manure regarding which the occurrence had taken place, was stored in the open space belonging to appellant Sheikh Serajul. In the circumstances, this Court holds that the appellants exceeded the right to defend their property causing injury to P.Ws. 5 and 6. This Court finds that since the nature of the injuries is not before the Court, it would be difficult to convict the appellants Sheikh Serajul and Sheikh Rauf under Section 324 of the Indian Penal Code. There is no material on the record to show that there was a sanction for prosecution under Section 27 of the Arms Act, and, as such the conviction under Section 27 of the Arms Act in the absence of order of sanction as well as the actual injury report, is not justified. 13. Considering the submissions aforesaid and the fact that the occurrence had taken place on 27.06.1983, this Court is not inclined to direct the appellants to serve out their sentences in this case. Accordingly, this Court converts the conviction of Sheikh Serajul and Sheikh Rauf who were convicted under Section 323 of the Indian Penal Code to the period already undergone. However, they would be required to deposit a fine of Rs. 500/- each before the trial court within a period of four months from the date of valid service of notice. The sentence of Sheikh Ahmad and Sheikh Jajul are similarly altered and they are also directed to pay a fine of Rs. 500/-. The Trial Court is directed to issue notice to the appellants to deposit the amount of fine, failing which they shall have to undergo simple imprisonment for two months. 14. In the result, this appeal is dismissed with the aforesaid modification of conviction and sentence. 15. 500/-. The Trial Court is directed to issue notice to the appellants to deposit the amount of fine, failing which they shall have to undergo simple imprisonment for two months. 14. In the result, this appeal is dismissed with the aforesaid modification of conviction and sentence. 15. The appellants would be at liberty to use the web copy of this order for the purposes of depositing the amount of fine, in case the judgment cannot be transmitted to the lower court within a period of four months. Appeal dismissed.