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2012 DIGILAW 1542 (PAT)

Chand Mohammad v. State of Bihar

2012-11-07

RAJENDRA KUMAR MISHRA

body2012
JUDGMENT This appeal is directed against the judgment of conviction dated 8.6.2000 and order of sentence dated 9.6.2000 passed by the Additional Sessions Judge-IV, Saran, Chapra, in Sessions Trial No.99 of 1993, whereby the appellants have been found guilty for the offence under Sections 324/34 of the Indian Penal Code and the appellant no.3, Ataullah Mian alias Ataullah Ansari and the appellant no.5, Ekbal Mian alias Ekbal Ahmad, have been sentenced to undergo rigorous imprisonment for one year whereas the appellant no.1, Chand Mohammad, appellant no.2, Shakil Ahmad and appellant no.4, Abul Wahab Ansari, have been directed to be released on their furnishing probation bond of Rs.5000/-(five thousand) each with two sureties of the like amount each for a period of two years with an undertaking to be of good behaviour and to maintain peace. 2. On the basis of the fardbeyan of the informant, Nashim Ansari (P.W.3) as recorded at Nagra outpost on 31.5.1989 at 9 A.M., Chhapra Mufassil (Khaira) P.S. Case No.205 of 1989 was instituted under Sections 341, 324, 323 and 307/34 of the Indian Penal Code against the accused-appellants. The informant, Nashim Ansari (P.W.3), gave his fardbeyan to the effect that on 31.5.1989 at about 8.30 A.M., he alongwith his brother, Ashif Ali (P.W.2), was going to his shop situated at Nagra Bazar. When he reached near the bridge of Gandak Canal, he saw that his villagers, the accused-appellants, Ataullah Mian, Ekbal Mian, Wahab Mian, Chand Mohammad Mian and Shakil Ahmad, were sitting under the bridge. Out of them, accused, Ekbal Mian, was armed with farsa and the accused, Ataullah Mian, was armed with dagger. All the accused-appellants surrounded the informant, Nashim Ansari (P.W.3) and his brother, Ashif Ali (P.W.2) by abusing them. The accused, Chand Mohammad Mian, and the accused, Wahab Mian, caught hold of his both forearms. The accused, Shakil Ahmad, in abusive language ordered to kill and throw dead bodies in the canal. On which the accused, Ekbal Mian, with an intention to kill gave a farsa blow on his head causing injury to him and he fell down. Thereafter, the accused, Ataullah Mian, gave a dagger blow on the neck of his brother, Ashif Ali. However, he tried to save himself but received injury on his chin and he fell down. Thereafter all the accused-appellants assaulted him and his brother by means of legs, fists and slaps. Thereafter, the accused, Ataullah Mian, gave a dagger blow on the neck of his brother, Ashif Ali. However, he tried to save himself but received injury on his chin and he fell down. Thereafter all the accused-appellants assaulted him and his brother by means of legs, fists and slaps. The motive behind the occurrence is said to be the criminal case pending in between the informant and the accused-appellants. 3. The police on investigation submitted the chargesheet under Sections 341, 323, 324 and 307/34 of the Indian Penal Code. Thereafter the cognizance of the offence was taken in the case against the accused-appellants and the case was committed to the court of sessions for trial, where charges under Sections 307/34 of the Indian Penal Code was explained to the accused-appellants, who pleaded not guilty and claimed to be tried. 4. The learned Additional Sessions Judge-IV, Saran, Chapra, on perusal of the evidence and the materials available on the record, hold the accused-appellants guilty for the offence under Sections 324/34 of the Indian Penal Code instead of Sections 307/34 of the Indian Penal Code as stated above. 5. To substantiate the charge as levelled against the accused-appellants, the prosecution has examined altogether five witnesses, who are Ainul Haque (P.W.1), Ashif Ali (P.W.2), the informant, Nashim Ansari (P.W.3), Hamid Mian (P.W.4) and Dr. Kumar Aadesh Chandra Srivastava (P.W.5) of Primary Health Centre, Jalalpur, who has examined the injuries of the informant, Nashim Ansari (P.W.3) and his brother, Ashif Ali (P.W.2). P.W.4, Hamid Mian, is the hostile witness and he has stated nothing about the occurrence as alleged in the F.I.R. 6. P.W.1, Ainul Haque, who is the co-villager of the informant, Nashim Ansari (P.W.3), has stated in his evidence that at the time of alleged occurrence he was returning from Nagra Chowk after taking tea and when he reached at the canal, he saw the accused-appellants, Ataullah Mian, Ekbal Mian, Wahab Mian, Chand Mohammad and Shakil, sitting under the canal. Out of them, the accused, Ekbal, was armed with farsa and the accused, Ataullah, was armed with dagger. Out of them, the accused, Ekbal, was armed with farsa and the accused, Ataullah, was armed with dagger. This witness has further stated in his evidence that at the time of the alleged occurrence, Ashif and Nashim, were coming from their house and when they reached there, the accused, Wahab and Chand Mohammad, caught hold of the forearms of Nashim and on the order of the accused Shakil to kill and throw him in the canal, the accused Ekbal, gave a farsa blow on the head of Nashim, who fell down sustaining injury. The accused, Ataullah Mian, gave a dagger blow on the neck of Ashif, who tried to save himself but sustained injury on his chin. The other accused also caused injury to them by legs, fists and slaps. This witness has further stated in his evidence that besides him, Hamid and Waizul had seen the occurrence and both the injured were taken by them to the Nagra O.P. and, thereafter, he returned from there and on the next day, his statement was recorded. This witness in his cross examination has stated that a civil suit in between the informant and the accused-appellants is going on. P.W.2, Ashif Ali, who is also one of the injured and is the brother of the informant, Nashim Ansari (P.W.3), has stated in his evidence that at the time of occurrence, he alongwith his brother, Nashim Ansari (P.W.3) was going to his shop situated at Nagra Bazar. When he reached near the bridge of Gandak canal, he saw five persons concealing themselves under the bridge. They were Wahab Mian, Ataullah Mian, Ekbal Mian, Chand Mohammad and Shakil Ahmad. They came out from there using abusive language and surrounded him and his brother. At that time, Wahab Mian and Chand Mohammad, caught hold of the hand of his brother, Nashim and on the order of Shakil, Ekbal Mian gave farsa blow on the head of his brother, Nashim, who fell down sustaining injury. Thereafter, Ataullah Mian, with an intention to kill him tried to give dagger blow on his neck. However, he tried to save himself but sustained injury on his chin. The other accused caused injury to him and his brother by means of legs, fists and slaps. On hullah raised by them, Ainul Mian, Hamid Mian, Waijul Haque and others rushed there and, thereafter, they fled away from there. However, he tried to save himself but sustained injury on his chin. The other accused caused injury to him and his brother by means of legs, fists and slaps. On hullah raised by them, Ainul Mian, Hamid Mian, Waijul Haque and others rushed there and, thereafter, they fled away from there. He and his brother were taken to Nagra Police Station by the witnesses, where their statement was recorded by Darogaji and he and his brother were sent to Jalalpur Government Hospital, where they were treated. This witness has further stated in his cross examination that there is also a counter case lodged by the accused, Ataullah, in which he and others were convicted but acquitted in appeal. This witness has further stated in his cross examination that Ali Hasan, who is his brother, had lodged a case regarding the land against the accused. P.W.3, Nashim Ansari, is the informant of this case. He has stated in his evidence that on 31.5.1989 at 8.30 A.M., he alongwith his brother, Ashif Ansari, was going to his shop at Nagra Bazar. When he reached near the canal, he saw the five persons sitting under the bridge, they were Ekbal Mian, Ataullah Ansari, Chand Mohammad, Shakil Ansari and Wahab Mian. Out of them, Ekbal Mian was armed with farsa and Ataullah was armed with dagger. They surrounded him and his brother after coming out from there using abusive language. Chand Mohammad and Wahab Mian caught hold of his both hands and on the order of Shakil to kill and throw dead body, Ekbal Mian gave farsa blow on his head causing cut injury on his head and he fell down and he was assaulted through fists and slaps. When his brother, Ashif, came to save him, he was also assaulted by Ataullah through dagger blow causing injury on his chin and he fell down on the earth and, thereafter, he was assaulted through fists and slaps. On hullah raised by them, Ainul Mian, Waizul Haque and others came and saw the occurrence. He was taken to Nagra O.P. by Ainul Mian, where his statement was recorded by Darogaji and after reading over the same, he put his signature. This witness has proved his signature on his fardbeyan as Ext.1. This witness has also stated in his evidence that Darogaji sent him and his brother to Jalalpur Government Hospital, where they were treated. He was taken to Nagra O.P. by Ainul Mian, where his statement was recorded by Darogaji and after reading over the same, he put his signature. This witness has proved his signature on his fardbeyan as Ext.1. This witness has also stated in his evidence that Darogaji sent him and his brother to Jalalpur Government Hospital, where they were treated. This witness has further stated that a criminal case in between him and the accused is going on and due to that reason, the accused have committed this occurrence. 7. P.W.5 is Dr. Kumar Aadesh Chandra Srivastava, who was posted at that time at Jalalpur Primary Health Centre as an Incharge Medical Officer. He has stated in his evidence that on 31.5.1989 at 10.30 A.M. he examined Nashim Ansari, son of Jahir Hassan Ansari, and found the following injury on his person: (i). Incised wound 2 ½” X 1/2” X skin and muscle deep (bone touched) on the right side of posterior aspect of parietal part of the scalp. (Head) injury is simple in nature caused by sharp weapon such as may be farsa. (ii). Swelling on lateral side of middle of left thigh 4” X 3”. Injury is simple in nature caused by hard and blunt substance such as may be lathi. This witness has further stated in his evidence that on the same day and same time, he examined Ashif Ali, son of Jaheer Hassan Ansari and found the following injuries on his person: (i). Incised cut wound on the left side of chin 1/2" X 1/4” X 1/3” vertices oblique. Injury is simple in nature caused by sharp weapon such as may be Chhura. (ii). Bruise on the left side of back vertically on the scapular region 6” X 1 ½”. Injury is simple in nature caused by hard and blunt substance such as may be lathi. 8. From the evidence of the informant, Nashim Ansari (P.W.3), Ashif Ali (P.W.2) and Ainul Haque (P.W.1), it is apparent that at the time of the alleged occurrence, the accused, Wahab Mian and Chand Mohammad, caught hold of the informant, Nashim Ansari (P.W.3) and on the direction of the accused, Shakil, the accused, Ekbal, gave a farsa blow on his head causing blood injury to him and he fell down. At that time, the accused, Ataullah Mian, also gave a dagger blow on the neck of Ashif Ali, who tried to save himself but received injury on his chin. The doctor has also found the injuries as stated by the informant, Nashim Ansari (P.W.3) and the other witnesses. 9. Learned counsel for the appellants made submission that there is a case and counter case, which is clear from the evidence of P.W.2, Ashif Ali, as detailed in pagraph-3 of his evidence, in which the informant, Nashim Ansari (P.W.3), his brother, Ashif Ali (P.W.2) and others were convicted and sentenced by the trial court and acquitted in appeal. As such, the prosecution party was aggressor at the time of the alleged occurrence. It is also submitted that the witnesses have admitted enmity in between the informant and the accused-appellants, so there is probability of false implication of the accused-appellants. Learned counsel for the appellants also submitted that the appellant no.3, Ataullah Ansari, and the appellant no.5, Ekbal Ahmad, against whom there is allegation to cause injury to the informant, Nashim Ansari (P.W.3) and his, brother Ashif Ali (P.W.2), were taken into custody on the date of judgment of conviction on 8.6.2000 and released on bail on 12.6.2000, as such, both have been sufficiently punished in view of the nature of allegation. 10. There is nothing in the evidence of the witnesses to disbelieve the occurrence as alleged by the informant, Nashim Ansari (P.W.3) in his fardbeyan. Moreover, Dr. Kumar Aadesh Chandra Srivastava (P.W.5), who treated the informant, Nashim Ansari (P.W.3) and his brother, Ashif Ali (P.W.2), has also found the injuries on their persons as alleged in the fardbeyan, while the injuries found on their persons are simple in nature. 11. In view of the aforesaid discussions, I come to the conclusion that there is no infirmity and impropriety in the impugned judgment of conviction of the accused-appellants under Sections 324/34 of the Indian Penal Code. 11. In view of the aforesaid discussions, I come to the conclusion that there is no infirmity and impropriety in the impugned judgment of conviction of the accused-appellants under Sections 324/34 of the Indian Penal Code. By the impugned judgment, the appellants have been convicted under Sections 324/34 of the Indian Penal Code while the appellant no.1, Chand Mohammad, appellant no.2, Shakil Ahmad and appellant no.4, Abul Wahab Ansari, have been directed to be released on their furnishing probation bond of Rs.5000/- (five thousand) each with two sureties of the like amount each for a period of two years with an undertaking to be of good behaviour and to maintain peace but the appellant no.3, Ataullah Ansari and the appellant no.5, Ekbal Ahmad, have been sentenced to undergo rigorous imprisonment for one year. It appears that the age of the appellant no.3, Ataullah Ansari and the appellant no.5, Ekbal Ahmad, were assessed as 66 years and 52 years respectively by the trial court at the time of judgment. As such, taking into consideration the age of the appellant no.3, Ataullah Ansari and the appellant no.5, Ekbal Ahmad, their sentence is modified to the extent of the period, which they have already undergone. 12. Accordingly, this appeal is dismissed with the modification in the sentence of the appellant no.3, Ataullah Ansari and the appellant no.5, Ekbal Ahmad, as indicated above. Appeal dismissed.