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2012 DIGILAW 1426 (PAT)

Saidur Rahman v. State of Bihar

2012-10-08

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–The appellant Saidur Rahman has been found guilty under Section 148 and 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and two years respectively, appellants 2 and 3, namely, Md. Ekhalaque Ahmad and Shabib Alam have been found guilty under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year, whereas the other appellants have been found guilty under Sections 147 and 323 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for six months for each offences by the 2nd Additional Sessions Judge, Katihar in Sessions Trial No. 228 of 1991. 2. On the basis of the fardbayan of one Manzoor Alam, a case was instituted against the appellants for a dispute with respect to cutting of the jackfruits from the tree, which was, according to the informant, on the lands allocated to him in the family partition. It is alleged that Saidur Rahman armed with a dabia aimed at the neck of the informant, which cut the upper eye-lid of the informant. It is also alleged that the other accused persons gave him lathi blows. 3. The defence, on behalf of the appellants, is that the appellant no. 1, Saidur Rahman, Allauddin and Nasimuddin are three brothers, who had partitioned the land amongst themselves. Allauddin had sold 10 kathas of land out of his share to the informant, Manzoor Alam. The appellant no. 1 claims that the said jackfruit tree stands on the land allocated to him, whereas Manzoor Alam, the informant, claims that the tree is on the lands which he had purchased from Allauddin. Both parties claim that the lands were measured on several occasions by the Amin. The informant got the land measured by a private Amin, whereas the appellant no. 1 on two occasions, once on the orders of the Circle Officer and once without any order, got the lands measured and the Amin concluded that the jackfruit tree stands on the lands belonging to him. The appellants and the informant, both, have filed the measurement reports regarding the lands in which the jackfruit tree is situated. A counter case was filed by Saidur Rahman in which Md. Hallal (PW 1), Md. Mojibur Rahman (PW 2), Md. Samim Akhtar (PW 3) as well as some others have been made accused. The appellants and the informant, both, have filed the measurement reports regarding the lands in which the jackfruit tree is situated. A counter case was filed by Saidur Rahman in which Md. Hallal (PW 1), Md. Mojibur Rahman (PW 2), Md. Samim Akhtar (PW 3) as well as some others have been made accused. The case has been tried, resulting in the conviction of the aforesaid persons in this case. The present case, according to the appellants, is a counter case to the earlier case filed by the appellants. The argument on behalf of the appellants is that the present case, Barsoi Police Station Case No. 80 of 1991 is false and fabricated. The witnesses are actually not the eye-witnesses to the occurrence, which would be evident from the depositions and that the informant has contradicted himself inasmuch as he has stated something different in the First Information Report to what he has deposed before the Trial Court. 4. PW 1 Md. Hallal is the cousin of the informant. He admits that he came to the place of occurrence when he heard the sound of raised voices. He claims that he did not see any injury on anybody else except Saidur Rahman. According to him, he had seen that Saidur Rahman had received injury on the eye. On perusal of the evidence of PW 1, the conclusion which this Court arrives is, that he is not an eye-witness to the occurrence and that there was a land dispute between the parties. It would also appear that this witness has not stated as claimed by him that he had disclosed the weapons carried by the appellants before the Investigating Officer. Thus, this Court concludes that the evidence of PW 1 is not reliable for the reasons aforesaid. 5. PW 2 Md. Mojibur Rahman is the uncle of the informant. He too had not witnessed the occurrence and he admits the counter case as well as the fact that Allauddin had sold part of his land to the informant Manzoor Alam. He also admits that there was measurement of the respective shares of the parties by the Amin. When he came to the place of occurrence, he found Manzoor Alam in an injured condition. Thus, PW 2 is merely a hearsay witness and cannot be said to be the eye-witness to the actual occurrence. 6. PW 3 Md. He also admits that there was measurement of the respective shares of the parties by the Amin. When he came to the place of occurrence, he found Manzoor Alam in an injured condition. Thus, PW 2 is merely a hearsay witness and cannot be said to be the eye-witness to the actual occurrence. 6. PW 3 Md. Shamim Akhtar stated that he is not an eye-witness to the occurrence. His evidence does not disclose anything about the manner of occurrence and thus, he is not an important witness in this case. 7. PW 4 Abdul Majid was having a cup of tea at a tea stall at the time of the occurrence. He admits that when he came to the place of occurrence, the accused persons were not present there. According to this witness, he saw the vest of Saidur Rahman covered with blood. It is obvious that this witness is not telling the truth as there was no occasion of there being any blood on the vest of the injured as there is no injury on his chest. It may also be noted that this witness has stated that there was an injury on the hand of Saidur Rahman before the Investigating Officer, which is belied by the injury report. It is obvious that this Court cannot rely on the evidence of this witness for the purpose of supporting the manner of occurrence, or for that matter, the involvement of the accused persons. 8. PW 6 Manzoor Alam is the informant and injured of this case. He has stated that he had received injuries on his left hand. In the First Information Report, he has stated that he had received sharp cutting injury on the eye. Therefore, there appears to be a discrepancy in the manner in which PW 6 has described the occurrence. PW 6 admits that Saidur Rahman had filed a case against him. He also admits that he did not receive any bleeding injury at the time of occurrence. According to this witness, the persons came to the place of occurrence after it was over. Therefore, it would appear that the witnesses examined in this case, as per the evidence of PW 6, the informant, are not eye-witnesses to the occurrence. He also admits that he did not receive any bleeding injury at the time of occurrence. According to this witness, the persons came to the place of occurrence after it was over. Therefore, it would appear that the witnesses examined in this case, as per the evidence of PW 6, the informant, are not eye-witnesses to the occurrence. He has stated before the Trial Court that he had disclosed the khesra and khata number to the Investigating Officer and also disclosed that he had planted the jackfruit tree in the year 1981. However, the evidence of the Investigating Officer (PW 7) would indicate that these facts were not disclosed before him. 9. This Court, after considering the evidence aforesaid, concludes that PWs 1, 2, 3 and 4 are not eye-witnesses to the manner of occurrence. They contradict each other with respect to the injury on the person of the informant (PW 6). Thus, the Court is left with the sole evidence of PW 6, the informant for the purposes of considering whether PW 6 is speaking the truth regarding the manner of occurrence and place where it took place. In this context, two facts may be noted. Firstly, PW 6 himself has contradicted the statement made in the First Information Report regarding the injuries sustained by him as he had stated that he received injury on the eye in the First Information Report, whereas in his evidence before the Trial Court, he has stated that he received a dabia injury on his hand. In the First Information Report, apart from stating that the appellants 4, 5 and 6 assaulted him with lathi, he has given no description of the injuries received by him. 10. The doctor has not been examined in this case, however, injury report has been proved and marked as Exhibit-3. The injury report would indicate that Manzoor Alam was examined on 24.06.1991 at 9 AM in this case. The Court shall refer to the First Information Report wherein it has been specifically stated that the First Information Report has been recorded at 09:30 AM. On reading the First Information Report, the time of the First Information Report and the medical evidence along with the evidence of the Investigating Officer of this case, which indicates that the Investigating Officer has sent the requisition to the doctor after describing the injuries, after the First Information Report was instituted. On reading the First Information Report, the time of the First Information Report and the medical evidence along with the evidence of the Investigating Officer of this case, which indicates that the Investigating Officer has sent the requisition to the doctor after describing the injuries, after the First Information Report was instituted. Thus, in the absence of the evidence of the doctor, regarding this aspect of the matter, certain doubts are raised regarding the injury report itself. It would also appear that the informant is trying to raise a dispute and take possession of that portion of land on which the jackfruit is standing. There is no clear evidence on behalf of the informant that the said jackfruit tree belongs to the informant, rather the evidence leans in favour of appellant no. 1. 11. Considering all aspects of this case, this Court finds that the evidence on behalf of the prosecution does not invoke the confidence of this Court, and as such, the prosecution has failed to prove its case beyond reasonable doubts. Accordingly, the appellants are acquitted of the charges levelled against them and they are also discharged from the liabilities of the bail bonds furnished earlier in this case. 12. In the result, this appeal is allowed.