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2012 DIGILAW 1681 (PAT)

Md. Alam v. State of Bihar

2012-12-13

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. The three appellants have been found guilty under Sections 307/34 of the Indian Penal Code by the 2nd Additional Sessions Judge, Simamarhi in Sessions Trial No. 95 of 1993/110 of 2000. They have been sentenced to undergo R.I. for seven years for the aforesaid sections, in addition to which they have also been sentenced to undergo R.I. for one month under Section 379 of the Indian Penal Code. It was ordered that both the sentences shall run concurrently. The appellants have been acquitted of the charge under Sections ¾ of the Explosive Substance Act. 2. Anwarul Haque gave his Fardbeyan on 28.4.1991 at 7 p.m. at the hospital. In his Fardbeyan he has stated that there is a piece of land which belongs to Izharul which has a bamboo clumps. Some bamboos had bent towards his land which according to the informant would now belong to him. He learnt that Izharul has sold the bamboo clumps to one Taslim Miyan. On the day of the occurrence, Izharul alongwith Md. Haroon and Md. Mojibur Rahman started to cut the bamboos which led to a hot exchange of words. It is alleged that Md. Alam took out a bomb like substance from his bag and threw it on the ground which injured the informant. It is also stated that several persons including Abdul Hadi, P.W. 4, Abdul Hai, P.W. 3, Md. Sadique (not examined), Azmati Khatoon, P.W. 5, came to the place of occurrence and they too received injuries as a result of the said explosion. 3. All the injured persons were examined at the hospital, the injury report is marked as Ext. 5 series. The doctor has not been examined and has not proved the injuries. Ext. 5 series indicate that the injuries were simple in nature. It would be pertinent to mention that during the trial a compromise petition had been filed signed by the informant and some others which perhaps had not been accepted by the Court below. During the trial, P.W. 1, Ainul, P.W. 3, Abdul Hai, P.W. 5, Azmati Khatoon and P.W. 7, the informant who were supposedly injured in the occurrence have been declared hostile. During the trial, P.W. 1, Ainul, P.W. 3, Abdul Hai, P.W. 5, Azmati Khatoon and P.W. 7, the informant who were supposedly injured in the occurrence have been declared hostile. The conviction in this Court is based on the evidence of P.W.2, Badiruzama who is a hearsay witness, P.W. 4, Abdul Hadi who does not name any of the accused and has stated that the land belongs to the appellant Haroon, P.W. 8, Md. Sadique who is the son of P.W. 4 and the Investigating Officer. 4. P.W. 1 claims that he does not know anything about the occurrence and, therefore, he has been declared as hostile. 5. P.W. 2 has signed on the First Information Report. He admits his signature. The statement was recorded under Section 164 of the Code of Criminal Procedure. According to his case he reached the place of occurrence when he heard the sound of commotion and was told by Sadique regarding the said occurrence. He is obviously a hearsay witness and, therefore, this Court cannot rely on his evidence regarding the manner of occurrence. 6. P.W. 3, Abdul Hai who was injured has turned hostile. He admits in his chief that there was a hot exchange of words between appellant Haroon and the informant Anwarul. In the meantime, he alleges that somebody had thrown a cracker or a bomb which injured several persons. This witness has been declared as hostile. 7. P.W. 4, Abdul Hadi claims to have been present at the place of occurrence, when he reached the spot he saw that several persons, were already present there. According to him somebody threw a bomb and he was injured in the said occurrence. He categorically states that the Investigating Officer had not examined him. He also states that he had not named Md. Alam, appellant no. 1 and Md. Izharul (who died during the trial) as being present at the time of occurrence. Thus, the evidence of P.W. 4 indicates that he had not seen the person(s) who had exploded the cracker/bomb and that he reached the place of occurrence and found that a crowd had already collected at the place of occurrence, therefore, this Court finds that the appellants cannot be convicted on the basis of the evidence of P.W. 4. 8. P.W. 5, Azmati Khatoon denies any knowledge regarding the occurrence. 9. The next witness of important is the Investigating Officer. 8. P.W. 5, Azmati Khatoon denies any knowledge regarding the occurrence. 9. The next witness of important is the Investigating Officer. According to the Investigating Officer, he took the statement of all the witnesses, visited the place of occurrence, prepared requisite for their injury report and has found that there was blood present at the place of occurrence although he has not seized the blood. He has categorically stated that he had attached the order of sanction for prosecution under Section ¾ of the Explosive Substance Act alongwith charge sheet which had been deposited in Court. However, the sanction order was not amongst the court records and, therefore, it appears that the appellants were acquitted of Section ¾ of the Explosive Substance Act. According to the informant appellant no. 2, Md. Mojibur Rahman who was not named in the First Information Report was made accused on the basis of the instructions of the Deputy Superintendent of Police. The Investigating Officer has also stated that he did not find any sign of bomb explosion at the place of occurrence however, he has observed that perhaps the signs have been removed by the concerned persons. 10. The evidence of the Investigating Officer would indicate that there was some sort of occurrence which had taken place on 28.4.1991 between the parties over a dispute and ownership of the bamboos. 11. P.W. 7, Md. Anwarul Haque who is the informant and has been declared hostile as he has stated that he went to the place of occurrence after he heard that a some sort of trouble had taken place, which gives a complete go-bye to the case he has made out in the First Information Report. He states that several persons were present at the place of occurrence whom he could not identify and he also heard the sound of explosion which could have been by either a cracker or a bomb. 12. The last witness to be examined in this case is P.W. 8 who was injured during the occurrence. His evidence in chief requires to be stated in this order in order to demonstrate that he has given a different version with respect to the manner in which the occurrence had taken place which is not mentioned in the First Information Report. His evidence in chief requires to be stated in this order in order to demonstrate that he has given a different version with respect to the manner in which the occurrence had taken place which is not mentioned in the First Information Report. In chief he has stated that he went to the place of occurrence when he heard the sound of commotion taking place. He saw Master Sarfuddin and Md. Saud Alam at the place of occurrence. He has specifically alleged that Izharul and appellant Haroon were armed with a lathi and an axe, Bhutkun @ Mujibul was armed with a Garasa and appellant Md. Alam, Master Sarfuddin (not accused) and Md. Saud (not accused) had a bag on their shoulders which contained bombs. According to him Anwarul had stopped Izharul from cutting the bamboo clumps which resulted in the occurrence. He has further assigned the role of an order giver to Master Sarfuddin (not accused) and also alleged that Master Sarfuddin, Md. Alam and Md. Saud Alam had exploded the bombs which injured several persons who were taken to the hospital for treatment. He has given a statement under Section 164 of the Code of Criminal Procedure. He denies that entered into a compromise with the informant. He has not been able to give details regarding the bamboo from the land of Izrahul and has stated that he had given the statement under Section 164 of the Code of Criminal Procedure that Izharul and Harun had lathi and axe whereas Bhutkun had a Garasa and Md. Alam, Master Sarfuddin and Saud had a bag containing bombs. P.W. 8 has also stated that the Investigating Officer has deliberately not included the name of Master Sarfuddin as Master Sarfuddin works as a tout for the police. He claims that he had filed a protest against the actions of the Investigating Officer. 13. The evidence of P.W. 8 indicates that he had come to the place of occurrence when several persons had already gathered at the place of occurrence and that he was injured during the occurrence. He has made specific allegations against the appellants and the accused persons given a description of arms that they were carrying and included the name of two others who have not been named by any of the witnesses. The evidence of P.W. 8 is obviously an exaggeration and is full of embellishment. He has made specific allegations against the appellants and the accused persons given a description of arms that they were carrying and included the name of two others who have not been named by any of the witnesses. The evidence of P.W. 8 is obviously an exaggeration and is full of embellishment. The question before this Court would be as to whether the Court can convict the appellants on the basis of the statement of P.W. 8. It is well settled law that there can be a conviction on the basis of the sole testimony, if the testimony is reliable and invokes the confidence of the Court. In the present case, it is obvious that four witnesses have been declared hostile amongst those who have come forward and made a statement in Court. P.W. 2 is a hearsay witness, P.W. 4 although injured and the father of P.W. 8, does not disclose the names of the persons who had allegedly exploded the bomb. It further appears that there is a dispute between the parties. According to P.W. 4, the land belongs to the appellant Md. Haroon whereas according to the Fardbeyan the land belongs to Md. Izharul. It also appears that a dispute has been raised by the informant regarding the ownership of the bamboos which had bent towards his land. It is obvious that the informant or for that matter the witnesses had not planted the bamboos and as such the dispute raised by the informant is to some extent unjustified. It would also appear that the occurrence had taken place on the spur of the moment when Izharul was cutting the bamboo clumps, it cannot be said that there was any intention as envisaged under Section 307 of the Indian Penal Code rather exchange of hot words turned into a fight. The question as to whether these appellants could be held responsible for exploding the bombs or inflicting the injuries, it is difficult to hold that these appellants were the persons who were responsible for exploding the bombs in the absence of reliable witnesses who could have come forward to give the statement. 14. The question as to whether these appellants could be held responsible for exploding the bombs or inflicting the injuries, it is difficult to hold that these appellants were the persons who were responsible for exploding the bombs in the absence of reliable witnesses who could have come forward to give the statement. 14. The evidence of P.W. 8 cannot be relied upon as he has tried to make out a third case and has implicated persons who were not named by any of the witnesses thus, creating doubt in the mind of the Court regarding the truthfulness of the evidence given in Court. 15. Learned counsel for the State submits that the injury report has been marked as exhibits which indicate that P.Ws. 1, 3, 4, 5, 7 and 8 were injured. However, this Court cannot consider Ext. 5 as the doctor in this case has not been examined to substantiate the injury reports. This Court also finds that there is no evidence to indicate that theft was committed by any of the appellants and as such the application under Section 379 of the Indian Penal Code has to be set aside. 16. In the result, this Court finds that there is insufficient material and that the evidence of P.W. 8 does not invoke the confidence of the Court and cannot be relied upon for the purposes of convicting the appellants. The appellants are acquitted of all the charges levelled against them. This appeal is allowed. The appellants are also discharged from the liabilities of their bail bonds furnished earlier in this case. Appeal allowed.