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2013 DIGILAW 249 (PAT)

Zaki Ahmad v. State of Bihar

2013-02-22

ASHWANI KUMAR SINGH

body2013
ASHWANI KUMAR SINGH, J.:–The present appeal has been filed under section 378(4) of the Code of Criminal Procedure (for short “the Code”) in pursuance of the leave granted by the court of 9.2.2005 in S.L.A. No.57 of 2004. 2. The appeal is directed against the judgment of acquittal dated 8th July, 2004 passed in Sessions Trial No.184 of 1994 by the learned Additional Sessions Judge (F.T.C. No.II), Bhagalpur. 3. The prosecution case, in brief, is that when the appellant had gone to his watch repairing shop on 21.1.1987, all the accused persons came to his house at about 10.30 a.m. They were searching for the appellant and were abusing him. When the appellant’s wife came out and told them that her husband was not present in his house, all the accused persons forcibly entered into the house. When his wife tried to resist them, the accused Sayed Kazim Hussain assaulted her with slap as a result of which she fell down and, thereafter, the accused Sayed Quamber Hussain assaulted her with leg upon her abdomen. The appellant’s wife was pregnant at that time. As a result of assault, she became unconscious. The accused persons, thereafter, took away ten watches kept in the house for repairing. The alleged occurrence is said to have been witnessed by the neighbours, namely, Bibi Mohsina Begam and her son Md. Parwez. On receipt of information regarding the incident, the complainant came to his house and took his wife to the hospital. She delivered a dead baby after operation in the hospital. The complainant informed regarding the incident to the police station but no FIR was registered. He, thereafter, sent written information to the Superintendent of Police by registered post on 22.1.1987 and 29.1.1987 but when no action was taken, a complaint was filed in the court of the learned Chief Judicial Magistrate, Bhagalpur on 2nd March, 1987. The learned Chief Judicial Magistrate took cognizance of the offence and conducted enquiry into the matter. After conducting enquiry under section 202 of the Code, he summoned the accused persons to face trial for the offence punishable under sections 323 and 307 of the Indian Penal Code. Thereafter, the case was committed to the court of sessions for trial. The learned Chief Judicial Magistrate took cognizance of the offence and conducted enquiry into the matter. After conducting enquiry under section 202 of the Code, he summoned the accused persons to face trial for the offence punishable under sections 323 and 307 of the Indian Penal Code. Thereafter, the case was committed to the court of sessions for trial. On 12.11.2003, the trial court framed charge under section 323 of Indian Penal Code against the accused Kazim Hussain and under section 307 of the Indian Penal Code against the accused Quamber Hussain. The appellants pleaded not guilty and claimed to be tried. In course of trial, altogether four prosecution witnesses were examined. 4. P.W.1, Mazhabi Begum, wife of the complainant, is alleged to have been abused and assaulted by the accused persons. P.W.2, Bibi Mohsina Khatoon @ Hasina Khatoon, is a neighbour, who is alleged to have witnessed the occurrence which took place inside the house. P.W.3, Zaki Ahmad, the appellant, is the complainant of the case. He has not witnessed the occurrence himself. P.W.4, Dr. R.N.Jha, is a retired professor in the Department of Obstetrics and Gynaecology of Jawaharlal Nehru Medical College and Hospital, Bhagalpur. He has proved the injury report in this case which has been marked as Ext.4. 5. In order to prove innocence, one witness on behalf of the defence, D.W.1, Zafar Ahmad, was examined. He has proved letter no.51 dated 19.3.2004 issued under the signature of Head of the Department of Jawaharlal Nehru Medical College and Hospital, Bhagalpur. 6. From the evidence on record I find that the appellant, in course of trial, failed to produce any postal receipt to establish the fact that any written information was ever sent to the Superintendent of Police by registered post for institution of FIR. In absence of postal receipt, it would be presumed that for an occurrence of 21.1.1987, the complaint was filed after an inordinate delay on 2.3.1987. 7. I further find that P.W.1, Mazhabi Begum, while being examined in court at the stage of enquiry stated that she was admitted in the hospital for about twenty days. However, when she was examined after framing of charge she has stated that she remained confined in the hospital for about ten days. 7. I further find that P.W.1, Mazhabi Begum, while being examined in court at the stage of enquiry stated that she was admitted in the hospital for about twenty days. However, when she was examined after framing of charge she has stated that she remained confined in the hospital for about ten days. In order to show that the victim was admitted in Jawaharlal Nehru Medical College and Hospital, Bhagalpur, on 21.1.1987 and was discharged on 31.1.1987, a discharge ticket of the Hospital has been brought on record which has been marked as ‘X’ for identification. 8. From a bare perusal of the discharge ticket it would appear that there is no signature of any resident surgeon. There is apparent cutting, overwriting and interpolation in recording registration number, age and date of admission in the discharge ticket produced in court. 9. P.W.4, Dr. R.N.Jha, has admitted in cross-examination that the discharge ticket seems to be not genuine. He has also admitted that there is cutting, over writing and interpolation in the discharge ticket produced in court. 10. I further find that by letter no.51 dated 19.3.2004, the Head of the Department of Obstetrics and Gynaecology of the Medical College concerned informed the Superintendent of the hospital that from the records available in the hospital it would transpire that one Mazhabi Begum, wife of Zaki Ahmad, was admitted in hospital on 20.1.1987 in the emergency ward and she died on 21.1.1987. The said letter dated 19.3.2004 was proved by the defence witness in the court. The trial court has discussed about it in much detail in its judgment. If the letter proved on behalf of the defence is to be believed then in that case, the entire story of the complainant/appellant becomes doubtful. If the occurrence had taken place on 21.1.1987, there was no occasion for P.W.1, Mazhabi Begum, to have been admitted in the hospital on 20.1.1987. 11. I further find from the evidence that the witnesses have admitted dispute relating to land between the parties. 12. I further find that the witnesses have stated that after being assaulted the victim bleeded profusely. However, no material exhibit has been produced in the court to support such allegation. 13. Taking into consideration all these facts, the trial court acquitted the accused persons. The trial court has given clear, cogent and convincing reasons for acquitting the accused persons. 12. I further find that the witnesses have stated that after being assaulted the victim bleeded profusely. However, no material exhibit has been produced in the court to support such allegation. 13. Taking into consideration all these facts, the trial court acquitted the accused persons. The trial court has given clear, cogent and convincing reasons for acquitting the accused persons. The findings of the trial court are neither erroneous nor perverse. 14. For the reasons recorded, hereinabove, I do not find any merit in the present appeal. It is dismissed, accordingly.