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2015 DIGILAW 857 (PAT)

Sheikh Ayub Ali v. State of Bihar

2015-06-29

I.A.ANSARI, VIKASH JAIN

body2015
JUDGMENT : I. A. ANSARI, J. Under challenge, in the present appeal, is the judgment of conviction and the order of sentence, dated 18.09.1993, passed, in Sessions Trial No. 83 of 1990, by learned 2nd Additional Sessions Judge, Katihar, whereby various sentences have been passed against the accused appellants. 2. By the impugned judgment, the learned trial Court has convicted all the accused-appellants, namely, Nurul Islam, Raisuddin, Abdul Khalid, Ayub Ali, Matin, Shorab Ali and Manzoor Ali, under Sections 148 and 302 read with Section 149 of the Indian Penal Code and accused-appellant Sohrab Ali, under Section 307 of the Indian Penal Code. For their conviction under Section 302 read with Section 149 of the Indian Penal Code, accused-appellants, namely, Raisuddin and Ayub Ali, have been sentenced to suffer imprisonment for life, and accused-appellants, namely, Nurul Islam, Abdul Khalid, Matin, Shorab Ali and Manzoor have been sentenced to suffer rigorous imprisonment for a period of ten years. Accused appellant Shorab Ali has further been sentenced for his conviction under Section 307 of the Indian Penal Code to suffer rigorous imprisonment for a period of seven years. For their conviction under Section 148 of the Indian Penal Code, all the accused-appellants have been sentenced to suffer rigorous imprisonment for a period of two years. All the sentences have been directed to run concurrently. 3. The case of the prosecution, as unfolded by the First Information Report, may, in brief, be described as under: (i) On 25.10.1987, at about 10:00 AM, when the informant, Md. Israfil (PW 4), reached his house, he saw his uncle, Noorul Haque, being assaulted, by means of farsa (a sharp-cutting weapon) and lathi at the hands of Raisuddin and his sons, Matin Ali, Khalid Ali, Ayub Ali, and sons of Ayub Ali, namely, Sohrab Ali, Manjoor Alam and Noor Islam, residents of the same area, and when the informant asked the accused as to why they were assaulting his uncle (Noorul Haque), all the accused rushed towards him and accused Sohrab Ali gave a blow, by means of farsa, on the informant, which caused injury on his head and he fell down. Accused Noor Islam, then, assaulted him (the informant) with lathi. Matin and Sohrab took out Rs.580/- from his waist and also snatched away his wrist watch. Accused Noor Islam, then, assaulted him (the informant) with lathi. Matin and Sohrab took out Rs.580/- from his waist and also snatched away his wrist watch. The accused persons also assaulted the grand father of the informant and when other co-villagers arrived there, the accused persons fled away. The reason behind the assault, as told by Noman Ali, a co-villager, is that the aunt of the informant, Sumrul Islam (PW 2), wife of deceased Noorul Haque, had gone to fetch water from the Government hand pump, but the wife of accused Raisuddin did not allow PW 2 to fetch water from the hand-pump, and as quarrel took place between the two women, accused Raisuddin and Matin came to the hand-pump and told the wife of Raisuddin not to allow PW 2 to fetch water. Thereafter, Noorul Haque came there and insisted that he would take water from the hand-up and as Noorul Haque so insisted, accused Raisuddin, who was also present there, called other members of his family to assault and, accordingly, Noorul Haque was assaulted by lathi and farsa. (ii) Both Noorul Haque and the informant, Israfil, were carried to Dr. Om Prakash Prasad’s clinic and when the Investigating Officer (PW 7) arrived at the said clinic, on receiving the information about the two injured having been brought at the said clinic, the informant (PW 4) gave oral information with regard to the occurrence. The information so given was reduced into writing as the fardbeyan of Md. Israfil and, treating the same as First Information Report, Barari Police Station Case No.154 of 1989, under Sections 147/148/149/307/379/447/342/323/324 of the Indian Penal Code, was initially registered; but as injured, Noorul Haque, succumbed to his injuries while remaining under treatment, Section 302 of the Indian Penal Code was also added to the case aforementioned. 4. During investigation, inquest was held over Noorul Haque’s dead body, which was also subjected to the post mortem examination, and, on completion of investigation, a charge sheet was laid, under Sections 147/148/149/302/307/379/323/324/342/447 of the Indian Penal Code, against accused persons, namely, Raisuddin, Matin Ali, Khalid Ali, Ayub Ali, Manjoor Alam, Sohrab and Noor Islam. 5. At the trial, charges were framed under Sections 148 and 302 read with Section 149 of the Indian Penal Code against accused persons, namely, Raisuddin, Matin Ali, Khalid, Ali, Ayub Ali, Manzoor Alam, Shorab Ali and Nurul Islam. 5. At the trial, charges were framed under Sections 148 and 302 read with Section 149 of the Indian Penal Code against accused persons, namely, Raisuddin, Matin Ali, Khalid, Ali, Ayub Ali, Manzoor Alam, Shorab Ali and Nurul Islam. A charge was also framed under Section 307 of the Indian Penal Code against accused Sohrab Ali. A further charge, under Section 379 of the Indian Penal Code, was framed against accused Sohrab Ali and Matin Ali. All the accused pleaded not guilty to their respective charges. 6. In support of their case, prosecution examined altogether 7 (seven) witnesses including the two doctors, Dr. Om Prakash Prasad (PW 1), who had initially treated the two injured persons, and Dr. M. M. Wasim (PW 7), who conducted the post mortem examination on the dead body of Noorul Haque. The accused were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. 7. Having found the appellants guilty of the offences charged with, the learned trial Court convicted them accordingly and passed sentences against them as mentioned above. 8. Aggrieved by their conviction and the sentences passed against them, all the seven accused, as convicted persons, have preferred this appeal. 9. We have heard Ms. Shama Sinha, learned Counsel, appearing as Amicus Curiae, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State. 10. While considering the appeal, let us, first, take note of the evidence of Dr. M. M. Wasim (PW 7), who had, admittedly, conducted, on 27.10.1989, at 11.30 AM, post mortem examination on the dead body of Noorul Haque. According to this witness, on conducting post mortem examination, he found following injuries: “1) Fracture of the Proximal phalynx of right little finger. 2) Lacerated wound vertically placed 1/2" 2 1/4” over the dorum of ring finger, bone deep with ragged margin. 3) Lacerated wound transversely placed over the head 8” x 1” with ragged margin bone deep with fracture of both parietal and left temporal bone. 4) Abrasion 2” x 1” over the right side of back of the chest over scapula.” 11. 3) Lacerated wound transversely placed over the head 8” x 1” with ragged margin bone deep with fracture of both parietal and left temporal bone. 4) Abrasion 2” x 1” over the right side of back of the chest over scapula.” 11. All the above injuries, according to the doctor (PW 7), were ante mortem in nature and caused by hard and blunt objects. 12. In the opinion of the doctor (PW 7), cause of death was shock and hemorrhage, which resulted from the head injury. 13. The question, however, remains: whether the accused-appellants or any of them had caused the death of Noorul Haque? 14. While considering the question, so posed, it may be noted that according to PW 2, wife of deceased Noorul Haque, who is alleged to be present from the beginning and witnessed the occurrence of assault on her husband, Noorul Haque, at the hands of the accused-appellants, she deposed that on the day of occurrence, at about 10:00 AM, she went to the Government hand-pump to fetch water, but accused Raisuddin’s wife came there and stopped her (PW 2) from taking water from the said hand-pump and an altercation between the two women took place. At that time, accused Raisuddin, armed with bailath (flat piece of wood), and accused Matin, armed with farsa (a sharp-edged weapon), arrived there and Raisuddin, pointing towards PW 2, said her (PW 2) not to fetch water. As PW 2 got delayed in taking water, her husband, too, came to the hand-pump and was told by his wife (PW 2) that Raisuddin and others were not allowing her to take water. PW 2 has also deposed that as her husband, Noorul Haque, insisted that he would take water from the said hand-pump, accused Ayub, Sohrab, Manjoor, Khalid, Raisuddin and Matin, variously armed, assaulted, at that stage, Noorul Haque, on being exhorted by Raisuddin. On being so assaulted, Noorul Haque fell down. When he (Noorul Haque) fell done, he was further assaulted by the accused, blood started oozing out of the injuries of Noorul Haque, whereafter Arshad Hameed (PW 3), Israfil (PW 4) and other villagers came there and carried Noorul Haque home and from home, Noorul Haque was taken to Semapur hospital and from there to Katihar hospital, where he succumbed to his injuries. 15. 15. From a bare reading of the evidence of PW 2, it clearly transpires that she has, nowhere, deposed that Israfil (PW 4) was also assaulted by any of the accused-appellants, though she claims that Arshad Hameed (PW 3), Israfil (PW 4) and four other villagers came to the place of occurrence. 16. Bearing in mind the evidence of PW 2 that she claims to have been present at the place of occurrence right from the beginning, let us, first, determine the place of occurrence. In this regard, it is the evidence of PW 2, as already indicated above, that the occurrence took place at the hand-pump and in the circumstances, as mentioned above, Arshad Hameed (PW 3) claims that having heard hulla from near the hand-pump, he went and saw Noorul Haque, his wife (PW 2) and Raisuddin’s wife standing there and Noorul Haque was lying there with blood was oozing out of his injuries. Supporting the claim of PW 2 and PW 3 that the occurrence took place at the hand-pump, PW 4 has deposed that the reason for altercation was that the hand-pump was near the door of accused Raisuddin and PW 2 had gone there to fetch water. In this regard, PW 5’s evidence is that when Noorul Haque’s wife (PW 2) came to fetch water at the hand-pump, Raisuddin’s wife stopped her from taking water and Noorul Haque came to see why there was delay in taking water and, at that time, Raisuddin came from his house, armed with a bailath (flat piece of wood), and he was followed by Ayub, Matin and Sohrab, whereupon, Raisuddin assaulted Noorul Haque on his head with bailath (flat piece of wood) and Noorul Haque fell down. 17. Consistently, all the prosecution witnesses have, thus, deposed that the occurrence took place at the area near the said hand-pump, whereas the case of the defence has been that on the night preceding the day of occurrence, when the deceased and the informant had gone to steal sweet potatoes, they were caught and assaulted them. 18. The evidence of the Investigating Officer, with regard to the above, is that according to the co-villagers of the deceased, the occurrence had taken place not near the hand pump, but at an agricultural field. 19. 18. The evidence of the Investigating Officer, with regard to the above, is that according to the co-villagers of the deceased, the occurrence had taken place not near the hand pump, but at an agricultural field. 19. Considering the fact that no witness has been examined, either by the prosecution or the defence, which could show that the occurrence took place at the field and not at the hand-pump, the evidence of Investigating Officer that he was told that the occurrence had taken place at some field and not at the hand-pump, can, at best, be regarded as hearsay and the evidence, so given, must, therefore, be kept excluded from our consideration. 20. What, however, cannot be ignored, and ought not be ignored, is the fact that PW 4 has deposed that Noorul Haque lost too much blood and a trail of blood was left there where Noorul Haque had fallen and that there were also footprints on the ground, at the said place, due to presence of the accused persons and others. It is also the evidence of PW 4 that clothes of his uncle, i.e., Noorul Haque, were soiled, because of the excess bleeding and much blood had fallen on the ground. It is extremely important to note that PW 4 has claimed that the Investigating Officer had seen the place of occurrence in his presence and he had shown the Investigating Officer the blood soiled ground, whereas the categorical evidence of the Investigating Officer is that he did not see any blood at the scene of crime nor did he find any foot-prints there. 21. Situated thus, it is not only difficult but well neigh impossible to confidently hold that the evidence, adduced by the prosecution, proves that the said hand-pump was the place of occurrence. 22. Closely following the above infirmity in the prosecution’s case, we notice that according to PW 4, Raisuddin exhorted to kill Noorul Haque and Ayub assaulted Noorul Haque by the back side of ballam (short spear), while accused Raisuddin assaulted Noorul Haque with bailath (flat piece of wood). 22. Closely following the above infirmity in the prosecution’s case, we notice that according to PW 4, Raisuddin exhorted to kill Noorul Haque and Ayub assaulted Noorul Haque by the back side of ballam (short spear), while accused Raisuddin assaulted Noorul Haque with bailath (flat piece of wood). In his cross-examination, PW 2 has claimed that she had told the Investigating Officer that it was Raisuddin, who had exhorted the others to kill Noorul Haque and she had also told the Investigating Officer that Ayub had assault with the back side of ballam (short spear) and Raisuddin assaulted Noorul Haque with bailath (flat piece of wood). The assertions, so made by PW 2, stand belied by the evidence of Investigating Officer inasmuch as it is in the evidence of Investigating Officer that PW 2 had not mentioned that Ayub had a ballam (short spear), she did not state that Sohrab and Manzoor had farsa and that Islam was carrying a lathi. She did not say that Raisuddin had given orders to the appellants to kill Noorul Haque nor that Ayub assaulted Noorul Haque from the back side of the ballam (short spear) or Raisuddin assaulted Noorul Haque with bailath (flat piece of wood). 23. Similarly, the evidence of PW 3 is that accused Matin and Manzoor were armed with farsa, accused Ayub was armed with ballam (short spear), accused Raisuddin was armed with bailath (flat piece of wood), whereas accused Noor Islam and accused Khalid were armed with lathis and, when Noorul Haque fell down, the accused-appellants assaulted him with their weapons. Ayub assaulted Noorul Haque from the back side of the ballam (short spear) and when PW 3 tried to save Noorul Haque, he, too, was assaulted by the accused persons and accused Ayub assaulted him (PW 3), by means of ballam (short spear) on his left hand and, as a result thereof, blood started oozing out of his left hand. 24. PW 3 also claims, in his evidence, that he told the Investigating Officer that Matin was armed with farsa and, Noorul Haque was assaulted by Manzoor with farsa and by Ayub with ballam (short spear) and that Islam and Khalid assaulted Noorul Haque by lathis. PW 3 claims that he reached the place of occurrence before Israfil. 25. 24. PW 3 also claims, in his evidence, that he told the Investigating Officer that Matin was armed with farsa and, Noorul Haque was assaulted by Manzoor with farsa and by Ayub with ballam (short spear) and that Islam and Khalid assaulted Noorul Haque by lathis. PW 3 claims that he reached the place of occurrence before Israfil. 25. It is the further claim of PW 3 that he told Investigating Officer that Ayub assaulted Noorul Haque with the back side of ballam (short spear) and Matin assaulted Israfil (PW 4) with farsa and Ayub also hit PW 3 with ballam (short spear). 26. Contradicting the evidence of PW 3, Investigating Officer has deposed, in his cross-examination, that Arsad Hameed (PW 3) did not tell him (Investigating Officer) that Matin was carrying farsa or that Manzoor assaulted with farsa and Ayub assaulted with ballam nor did he state that Islam and Khalid assaulted with lathis. Investigating Officer has also deposed that he was not told that Ayub assaulted from the back side of ballam (short spear) or Matin assaulted Israfil (PW 4). 27. Thus, it becomes transparent from the above discussion of the evidence on record that though the specific role has been assigned by the prosecution witnesses to each of the accused persons about the assault on Noorul Haque, none of the above witnesses had asserted, while the occurrence was fresher in their minds, what was the specific role played by each of the accused or what weapon had been used by each accused, while assaulting Noorul Haque or the informant, Israfil. 28. Coupled with the above, PW 4 and PW 5 have claimed, in their evidence, that the assault took place for about 10 minutes; but the evidence on record does not explain why only four injuries were caused on the said deceased, when seven persons, variously armed, had assaulted the deceased for about 10 minutes. The version of the occurrence, so given by the prosecution witness, is not only doubtful, but unbelievable. This, in turn, shows that either the evidence, describing the occurrence, is wholly untrue or some innocent persons have been implicated with the guilty ones. 29. There is yet another circumstance, which vigorously shakes the credibility of the prosecution’s case. The version of the occurrence, so given by the prosecution witness, is not only doubtful, but unbelievable. This, in turn, shows that either the evidence, describing the occurrence, is wholly untrue or some innocent persons have been implicated with the guilty ones. 29. There is yet another circumstance, which vigorously shakes the credibility of the prosecution’s case. What we notice is that according to evidence of PW 3, he (PW 3) and Israfil arrived at the place of occurrence and took Noorul Haque home. PW 2, nowhere, speaks of any assault on Israfil (PW 4) and/or Arsad Hameed (PW 3) at the hands of the accused. In fact, she has clearly deposed that at the time of the occurrence, except her, nobody from her house was present near the Government hand-pump and she had remained present there until Israfil and Arsad Hameed arrived there. This belies the evidence of PW 3, PW 4 and PW 5 that the occurrence took place in their presence. 30. It is also noteworthy that the evidence of PW 3 is that the witnesses came only on hulla raised meaning thereby that the witnesses were not present from before at the place of occurrence. Interestingly, it is in the evidence of PW 4 that he came home after selling rice, he (PW 4) saw Noman Ali, Tahir Ali, Noorul Haque, Sumrat Islam, accused Ayub and accused Sohrab at the place of occurrence; but in his further evidence he has stated that his uncle, Noorul Haque, had not fallen down, while the quarrel was still going on and the verbal duels lasted approximately for about 10 minutes. 31. It is also the claim of PW 2, in her evidence, that at that time, no one from the neighbourhood had arrived, only Noman (not examined) and Tahir were present. 32. What is surprisingly is that Israfil (PW 4) has been alleged to have been assaulted at the place of occurrence, PW 2 did not name PW 3 as the person, who was present at the place of occurrence, when he was assaulted. In fact, as already indicated above, PW 4 was not present at the place of occurrence. 33. 32. What is surprisingly is that Israfil (PW 4) has been alleged to have been assaulted at the place of occurrence, PW 2 did not name PW 3 as the person, who was present at the place of occurrence, when he was assaulted. In fact, as already indicated above, PW 4 was not present at the place of occurrence. 33. What emerges from the above discussion is that the evidence, adduced by the prosecution, is an admixture of half-truth and untruth and the truth, if any, is so inextricably mixed with the half-truth, it has become wholly impossible to disengage the truth from falsehood. The prosecution’s case is, therefore, held as wholly unsafe and unreliable. 34. At any rate, in the light of the nature of the evidence on record, the prosecution could not have been held, and ought not to have been held, to have proved their case beyond reasonable doubt against the accused appellants. Consequently, the accused- appellants deserved to be accorded, at least, benefit of doubt. 35. Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, the appellants ought to have been acquitted under benefit of doubt. 36. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused appellants and the sentence passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offence, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt. 37. Since the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged. 38. Let the Amicus Curiae be paid a fee of Rs.5,000/-. 39. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records. Appeal allowed.