Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1597 (PAT)

Sk. Kamrullah v. State of Bihar

2012-11-29

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. 1. Learned counsel appearing on behalf of the appellants submits that he has instruction to state before this Court that Sk. Kamrullah, Son of Ramjan, Sk. Manjoor, Son of Sk. Abdul Rahman, Sk. Shah Mohammad, Son of Abdul Mazid and Sk. Hakim, Son of Tasduk Hussail have died during pendency of this appeal. The Trial Court is directed to ascertain this fact. In case the Trial Court comes to the conclusion that these appellants have died, the appeal against them would abate, if not, they will be covered by the judgment and order passed by this Court in this appeal. 2. All the appellants have found guilty under Section 307 of the Indian Penal Code and have been sentenced to undergo R.I. for five years. They have also been found guilty under Section 323 of the Indian Penal Code and have been sentenced to undergo R.I. for two years. 3. The prosecution case in brief is that Md. Jamshed was going to work at Dhaka Bazar by bicycle when he was surrounded by 19 named accused persons near the hut of Jamil Akhtar. It is alleged that Sk. Manzoor (who is now dead) inflicted a Farsa blow on the head of the informant whereas all the other 18 accused persons assaulted him on his hands, legs and other parts of the body. It is alleged that Sk. Latif took away the H.M.T. watch belonging to the informant. The motive for the occurrence disclosed in the First Information Report is that Sk. Serazul and Sk. Hafiz are accused in a case of dacoity in which Md. Mustafa, P.W. 8, the brother of the informant has given evidence against them. Being aggrieved by this fact the said occurrence is said to have taken place. 4. The defence on behalf of the appellants is that there is a counter case in which Roz Mohammad, P.W. 2, Anwarul Haque, P.W. 5, Sk. Mustafa, P.W. 8, and the informant are accused. A compromise petition was filed in this case as well as in the counter case which have been marked as Ext. A/1 and A/3 respectively. The defence has also brought on record several First Information Reports instituted by them in the year 1984-85 regarding some land dispute in which occurrences had taken place between the appellants and the informant and his family members. A/1 and A/3 respectively. The defence has also brought on record several First Information Reports instituted by them in the year 1984-85 regarding some land dispute in which occurrences had taken place between the appellants and the informant and his family members. It is thus, submitted that there is admitted enmity between the two parties. 5. Counsel appearing on behalf of the informant on the other hand submits that three persons were injured out of which the informant was grievously injured as he had fractured both his hands as a result of the injuries inflicted on him. It is further submitted that the prosecution has been able to show by leading evidence in Court that the manner of occurrence as made out in the First Information Report is the correct version of the case. 6. In the present case, ten witnesses have been examined. The Investigating Officer of the case has not been examined who would have perhaps able to state as to which of the occurrences is the true version. In any event, this Court will begin with the evidence of the doctor who has been examined as P.W. 7. The doctor, P.W. 7 has found simple injuries on Roz Mohammad, P.W. 2, Sk. Anwarul Haque, P.W. 5 and Mustafa, P.W. 8, whereas he has found six injuries on the person of the informant out of which two of them are fractures of the right and left arm. The injury by Farsa is injury no. 3 which is an incised wound. Apart from which there is swelling and bruises on the body of the informant. It may be mentioned here that the First Information Report also discloses that P.W. 2, P.W. 5 and P.W. 8 had intervened in the occurrence and were assaulted by the accused persons. From the doctor’s report, it is apparent that four persons were injured on the informant side in the said occurrence. 7. Besides the informant three witnesses who have been named in the First Information Report have come forward to support the prosecution version, they are P.W. 3, Sk. Muslim, P.W. 6, Sk. Tufail, P.W. 9, Shafi Mohammad. It is said that these witnesses along with others named in the First Information Report came to the place of occurrence to intervene and thus defused the entire matter. 8. All the witnesses support the prosecution version. Muslim, P.W. 6, Sk. Tufail, P.W. 9, Shafi Mohammad. It is said that these witnesses along with others named in the First Information Report came to the place of occurrence to intervene and thus defused the entire matter. 8. All the witnesses support the prosecution version. However, all of them are related not only to the informant but also some of them are related to some of the appellants. It would appear from the evidence of the witnesses that there were several disputes between the parties and cases had been instituted on earlier occasions thus, it would appear that all the witnesses support the fact that there is previous enmity between the informant, his brother and the appellants. The evidence also reveals that the witnesses have not been able to state specifically as to which of the appellants had assaulted the injured persons or describe specific manner in which the injury was inflicted. However, all of them admit that when they heard the sound of raised voices they came running to the place of occurrence and saw that an occurrence was taking place in which the informant had received injuries and the appellants were throwing bricks etc. on the other injured person in this case. The aforesaid facts as mentioned above is the evidence of all the witnesses. 9. Specifically, counsel for the appellants has referred to the evidence of P.W. 4 when he states in Court that he had seen bricks being thrown on behalf of both the parties. He has further stated that about 30-40 persons had come to defuse the situation. However, it may be noted that this witness has said that Jamshed was lying on the ground and that he was being assaulted by lathi by the appellants. 10. P.W. 5, Anwarul Haque has stated at paragraph 9 that Manjoor was armed with Garasa, Serajul was armed with a gun, Harun was also armed with a gun whereas others were armed with lathis. He further states that when he reached the place of occurrence, there was brick batting taking place and that he along with Roz Mohammad, P.W. 2 and Md. Mustafa, P.W. 8 received injuries by bricks on their person. Similar is the statement of P.W. 6 who states that when Roz Mohammad, Mustafa, Anwarul, Zahir and others came to the place of occurrence they were also injured by brick bats. Mustafa, P.W. 8 received injuries by bricks on their person. Similar is the statement of P.W. 6 who states that when Roz Mohammad, Mustafa, Anwarul, Zahir and others came to the place of occurrence they were also injured by brick bats. On the basis of the aforesaid statements of the witnesses, counsel for the appellants submits that in fact it is not a case in which lathis were used rather it is a case in which bricks were thrown at the injured person which resulted in the injuries as described by P.W. 7 and thus no case is made out under Section 307 of the Indian Penal Code. 11. Counsel for the informant on the other hand submits that it may be true that P.W. 2, P.W. 5 and P.W. 8 received injuries by bricks but it cannot be denied on the evidence of P.W. 7 that the informant was assaulted by lathis which resulted in fracture of his right and left arm apart from other injuries. Besides which it is also highlighted that the doctor had specifically stated that the injuries on informant could not have been caused as a result of brick batting. 12. The conclusion after going through the evidence and judgment of the Trial Court which discusses the evidence in some details is that there was an occurrence in which the informant was injured his brothers and other well wishers intervened which resulted in brick batting and perhaps and as a defence the well wishers of the informant threw bricks on the informant’s party which resulted in the counter case. However, it cannot be denied that the appellants were responsible for causing injuries on four persons on 8.9.1987 the date on which the occurrence took place. 13. Lastly, counsel for the appellants submits that the occurrence took place on 8.9.1987 and almost 35 years have passed since the occurrence had taken place apart from which all the appellants have remained in custody for a month and as such this Court may not send these appellants back to undergo the rest of their sentences after more than two decades. On considering the submissions made on behalf of the appellants, this Court finds that indeed it would lead to further enmity between the parties if, the appellants are sent back to jail after such a long gap. 14. On considering the submissions made on behalf of the appellants, this Court finds that indeed it would lead to further enmity between the parties if, the appellants are sent back to jail after such a long gap. 14. In the result, this Court holds that the period undergone would meet the ends of justice in the peculiar facts of this case. However, the appellants are directed to pay a sum of Rs. 1,000/- each to be deposited in the Trial Court failing which they would have to under R.I. for six months. The said amount may be deposited in the Court below and should be paid by way of compensation to the informant or his heirs in this case within a period of four months. The parties may utilize the web copy of this judgment for the purpose of depositing the said compensation amount in the Trial Court. The informant will be at liberty to withdraw the said amount from the Trial Court. The appellants will only be discharged from the liabilities of their bail bonds furnished earlier in this case after depositing the aforesaid compensation amount. 15. This appeal is dismissed with the aforesaid modification of sentence. Appeal dismissed.