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2012 DIGILAW 1328 (PAT)

BHIRGUN MIAN, SON OF ABID MIAN v. STATE OF BIHAR

2012-09-19

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. — The appellant no. 1 has been found guilty and convicted under Section 307 of the Indian Penal Code to undergo rigorous imprisonment for seven years. The appellant nos. 2 and 3 have been found guilty and have been convicted under Section 323 of the Indian Penal Code to undergo rigorous imprisonment for six months by the 2nd Additional Sessions Judge, Gopalganj in Sessions Trial No. 243 of 1989/3 of 1989. 2. The occurrence took place on 01.06.1988 wherein it has been alleged by Havildar Mian, the informant, that the accused persons along with their father Khedan Mian were going to plough the field, Shakeela Khatoon, wife of Pir Mohammad objected, whereupon, it is alleged that Khedan Mian slapped her, whereas Bhrigun Mian is said to have assaulted the informant, who intervened in the matter, by means of a bhala causing injuries over and below his left eye. It is also alleged that appellant nos. 2 and 3 assaulted Havildar Mian with fists. The cause of the occurrence is the plot of land originally belonged to Raison Khatoon. Raison Khatoon had mortgaged the lands in question to Pir Mohammad. Later on, she sold the said land to Abid Mian and Sahjad Mian. Eventually, the mortgage was redeemed on 10.05.1988 and Raison Khatoon was put in possession of the said land. It is because of this reason that Shakeela Khatoon was objecting to the appellants ploughing the field. 3. The defence on behalf of the appellants is that they were in rightful possession of the lands and Shekeela Khatoon and the informant were trying to intervene with their possession which resulted in assault from both sides, for which the appellants had also lodged a case under Section 147, 323, 324 and 379 of the Indian Penal Code (which ended in the acquittal). On the basis of the aforesaid facts, it is accepted that the appellants had gone to the piece of land which is the subject matter of dispute to plough the said land. The only difference which arises is the versions put forth by both the appellants and the informant regarding this case. On the basis of the aforesaid facts, it is accepted that the appellants had gone to the piece of land which is the subject matter of dispute to plough the said land. The only difference which arises is the versions put forth by both the appellants and the informant regarding this case. I may mention at the outset that Havildar Mian, the informant, has not been examined in this case perhaps for the reason that he was about 75 years of age when the occurrence took place, which is apparent from the injury report and by the time of recording the evidence, he was not alive, although no explanation was given by the either parties during the trial regarding his non-examination. 4. Altogether, seven witnesses have been examined on behalf of the prosecution. PW 7 Ali Ahmad is a formal witness whereas PW 5 is the doctor who examined the injuries. The evidence of PW 5, the doctor, discloses that Havildar Mian had received incised injury on the left side of his head just below the eye 1” x 1/12” and a lacerated would below the left eye which was skin deep. The doctor had reserved his opinion regarding injury no. 1, however there is no material to indicate that injury no. 1 is dangerous to life or grievous in nature which would be apparent from the description of the injury. Later on, the doctor has tried to make out a case despite there being lack of evidence that injury was dangerous to life. This Court finds that there being no further evidence to indicate that injury no. 1 was grievous or that it was dangerous to life, the doctor could not have arrived at the aforesaid conclusion. In fact, in the words of the doctor “injury no. 1 is superficial injury caused on bony part or fleshy part may be dangerous to life”. (emphasis added). 5. Apart from the evidence of the doctor (PW 5), PW 1 Shakeela Khatoon has supported her case. She also supports the genesis of the occurrence inasmuch as she accepts that the lands in question were the subject matter of dispute. Her evidence is most important as she accepts that the appellants were in possession of the lands. 6. 5. Apart from the evidence of the doctor (PW 5), PW 1 Shakeela Khatoon has supported her case. She also supports the genesis of the occurrence inasmuch as she accepts that the lands in question were the subject matter of dispute. Her evidence is most important as she accepts that the appellants were in possession of the lands. 6. Similarly, PW 2 Nustan Ara, daughter of PW 1 supports the genesis of the occurrence and accepts that the possession of the land in dispute was with Raison Khatoon. The evidence of this witness further reveals that Ishu Mian (PW 4) and PW 1 had received injuries during the occurrence. It is submitted that this witness could not have been an eye-witness to the occurrence as she has not disclosed about the assault on Havildar Mian. The story of assault on Havildar Mian has been supported by the other witnesses in this case. 7. PW 3 Nazir Mian is not mentioned as the eye-witness to the occurrence in the First Information Report as such his evidence cannot be believed even though he purportedly supports the case made out by the prosecution. 8. PW 4 Ishu Mian is an eye-witness to the occurrence. He supports the occurrence and accepts that the genesis of the occurrence was a land dispute between the parties. 9. PW 6 is not named in the First Information Report as a witness and his evidence is thus to be rejected by this Court as he has come before the Trial Court for the first time to depose in this case. 10. Unfortunately, the Investigating Officer of this case has not been examined and as such, it is submitted that the appellants have been prejudiced in this matter. 11. On consideration of the entire evidence, it would appear that this is a case where there was exchange of assault between the parties over a piece of land. It appears to be an admitted position that the lands in question was in possession of the accused persons by virtue of an order passed by the Circle Officer, Barauli which has been marked as Exhibit-A by the defence, wherein it has been stated that after the mortgage period expired, the lands were returned to Most. It appears to be an admitted position that the lands in question was in possession of the accused persons by virtue of an order passed by the Circle Officer, Barauli which has been marked as Exhibit-A by the defence, wherein it has been stated that after the mortgage period expired, the lands were returned to Most. Raison Khatoon and she was put in possession of the lands in dispute, and as such, it cannot be said that the appellants had provoked the informant, as they were legally in possession through the order of the Circle Officer and factually virtually in possession as per the case of Shakeela Khatoon with whom the main dispute arises. Shakeela Khatoon, wife of Pir Mohammad, on the other hand, claims that she has a bonafide claim on the lands by virtue of being the ex-mortgagee. 12. Thus, this Court does not find that in the facts aforesaid, that a case would be made out under Section 307 of the Indian Penal Code as the occurrence took place at the spur of the moment and the “intention” to cause fatal injuries to Havildar Mian has not been established by the prosecution, and therefore, the conviction under Section 307 of the Indian Penal Code is set aside and converted into one under Section 323 of the Indian Penal Code. The period already undergone by appellant no. 1 is sufficient in the facts of this case to meet the ends of justice. 13. Appellant nos. 2 and 3 have been convicted under Section 323 of the Indian Penal Code for a period of six months for supposedly assaulting Shakeela Khatoon and Havildar Mian. The evidence regarding this aspect of the matter is not supported by the witnesses nor is there any injury report to corroborate their conviction under Section 323 of the Indian Penal Code. At the most, it can be said that they would by virtue of being present along with Bhrigun Mian is convicted under Section 149 of the Indian Penal Code. Because of the fact that the occurrence took place in the year 1988 and the matter is being taken up after more than two decades, this Court does not think it proper to pass any sentence against appellants 2 and 3. 14. This appeal is therefore, dismissed with the modification in conviction and sentence. Because of the fact that the occurrence took place in the year 1988 and the matter is being taken up after more than two decades, this Court does not think it proper to pass any sentence against appellants 2 and 3. 14. This appeal is therefore, dismissed with the modification in conviction and sentence. The appellants are discharged from the liabilities of the bail bonds furnished earlier in the case.