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2017 DIGILAW 1370 (JHR)

Shamshuddin Mian v. State of Jharkhand

2017-08-04

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned counsel appearing for the appellants, learned counsel for the State as also learned counsel for the informant. 2. This appeal has been filed by the appellants, being aggrieved by the Judgment of conviction dated 31.07.2006 and Order of sentence dated 05.08.2006, passed by the learned Additional Sessions Judge, FTC - II, Dhanbad, in Sessions Trial No. 264 of 2004, whereby both the appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo imprisonment for life and fine of Rs. 5000/- each, for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant, Md. Shabbir Hussain, the son of the deceased Suddin Mian. The deceased was an employee in BCCL and was residing in Quarter No. BM/214 of BCCL. The occurrence had taken place in the night between 3-4.12.2003. The accused appellant No. 1 is the father-in-law of the elder brother of the informant, whereas the accused appellant No. 2 is the brother-in-law of appellant No. 1. It is stated in the fardbeyan that there was family dispute between the parties. It is alleged that in the night between 3-4.12.2003, while the informant and his father were sleeping in the house, both the accused persons entered the house by breaking the latch of the door and they dragged out the father of the informant to the courtyard where accused No. 2 Shamshuddin Mian S/o Late Husaini Mian assaulted his father by a wooden shaft, due to which his father fell down with bleeding injuries. The informant tried to raise alarm whereupon it is alleged that accused No. 2 pressed his mouth and also assaulted him with slap and, thereafter, both of them fled away. Upon the alarm raised by the informant several persons assembled and found the father of the informant lying in the pool of blood and they also found the weapon used in the occurrence, i.e., wooden shaft, one leather belt and one sword, which were left behind by the accused persons while fleeing away. On the basis of the fardbeyan given by the informant Md. On the basis of the fardbeyan given by the informant Md. Shabbir Hussain, Putki (Moonidih) P.S. Case No. 158 of 2003, corresponding to G.R. No. 3531 of 2003, was instituted for the offence under Sections 302/34 of the Indian Penal Code, against both the accused persons, and investigation was taken up. After investigation, the police submitted the charge sheet against both of them. 4. Upon commitment of the case to the Court of Session, charge was framed against both the accused persons for the offence under Sections 302/34 of the Indian Penal Code, and upon both of them pleading not guilty and claiming to be tried, they were put to trial. In course of trial, eight witnesses were examined on behalf of the prosecution, including the Doctor and the Investigating Officer. Defence has also examined three witnesses in the case. 5. PW-1 Md. Shabbir Hussain is the informant in the case and has supported the prosecution case as an eye witness. This witness has stated that on 04.12.2003 at about 03.00 A.M. in the morning, while he was sleeping with his father in the BCCL Quarter, the father-in-law of his elder brother, i.e. accused appellant No. 1 Shamshuddin Mian S/o Late Quadir Mian @ Churu Mian and his brother-in-law accused appellant No. 2 Shamshuddin Mian S/o Late Husaini Mian, both of them entered into the house breaking the latch of the door and they dragged his father to the courtyard and assaulted him with a wooden shaft. Upon the alarm raised by this witness, the accused No. 2 pressed his mouth and also assaulted him by slap and, thereafter, both the accused persons fled away leaving behind the weapon of offence, i.e. wooden shaft, one leather belt, one sword and a shawl. He has stated that there was family dispute between the parties due to which earlier also the accused persons had tried to kill his father, but they could not succeed in their attempt. He has stated that upon the alarm raised by him, Shakur Mian and other persons assembled there and they saw his father lying in the pool of blood. The police also reached there and recorded his fardbeyan, upon which he put his signature, which on his identification was marked as Ext.1. He has identified both the accused persons in the Court. The police also reached there and recorded his fardbeyan, upon which he put his signature, which on his identification was marked as Ext.1. He has identified both the accused persons in the Court. In his cross-examination, this witness has stated that on the alarm raised by him about 30-40 persons had assembled there and Shakur Mian was also one of them. He has also admitted that the sword and the leather belt were not used in the offence. He has also admitted in his cross-examination that only one accused had assaulted his father whereas the other was holding him. 6. PW-2 Krishna Singh, PW-3 Md. Daud, PW-4 Girdhari Lal and PW-5 Mahesh Prasad, are the witnesses, who had assembled at the place of occurrence on hearing the alarm raised by the informant and they are also the witnesses to the inquest report and the seizure list of the weapon of offence and the articles left behind by the accused persons and have identified their signatures on both the documents, which were marked as exhibits. These witnesses however, have stated that they were not informed by the informant as to who had assaulted the deceased, upon which these witnesses were declared hostile. 7. PW-6 Dr. Shailendra Kumar, is the Medeical Officer, who had conducted the post-mortem examination on the dead body of deceased on 04.12.2003 at 02.30 P.M. and had found the following ante-mortem injuries on the dead body:- (i) Lacerated wounds (a) 1½" x ½" x bone deep over right eyebrow. (b) 2" x ½" x scalp deep on the middle of forehead. (ii) Abrasions (a) 1" x ¼" on the right temple. (b) 1" x ¼" on the right chick bone with close fracture of the bone. On dissection:- Blood and clots were found underneath the scalp all over the frontal bone of scalp on both sides. 3½" long linear fracture was found on the right side of frontal bone. Sub-dural hematoma was found defused all over surface of the brain on both sides in a thick layer. Heart and bladder were empty. Stomach contained about 50 grams of saag-bhaat. All internal organs were found congested. This witness has stated that the death was caused due to aforementioned injuries on head and brain caused by hard and blunt object. He has proved the post-mortem report to be his pen and signature, which was marked as Ext-4. 8. Heart and bladder were empty. Stomach contained about 50 grams of saag-bhaat. All internal organs were found congested. This witness has stated that the death was caused due to aforementioned injuries on head and brain caused by hard and blunt object. He has proved the post-mortem report to be his pen and signature, which was marked as Ext-4. 8. PW-7 Vivekanand is the Investigating Officer of the case, who had taken charge of the investigation at the later stage, but he has proved the fardbeyan and the inquest report, which were marked Exhibits-1/1 and 2/2 respectively. This witness has stated that he had sent the blood stained seized exhibits for forensic examination and he had submitted the charge sheet. He has also proved his signature on the formal F.I.R. which was marked as Ext.6. 9. PW-8 Ram Ikbal Singh is also the Investigating Officer of this case. He has stated that on 04.12.2003 at about 08.15 a.m. he had recorded the fardbeyan of the informant, which he had identified and which was earlier marked as exhibit in the case. He has also stated about preparation of the inquest report and the seizure of the weapon of offence, i.e. wooden shaft and blood etc., and has proved the seizure list which was Marked Ext.3/2. On 05.12.2003, he arrested the accused Shamshuddin Mian, the father-in-law of the elder brother of the informant. He recorded the statements of the witnesses and he has also given the detail of the place of occurrence, where he had found the dead body of the deceased in the pool of blood. In his cross-examination, this witness has stated that all the doors of the quarter were such, which could be locked from the inside and if a person tried to enter the house from outside, he could do so only after breaking the latches of the doors, but at the place of occurrence, he did not find the latch of any door broken. 10. The statements of the accused persons were recorded under Section 313 Cr. P.C. in which they denied the circumstances appearing against them in the evidence of the prosecution. The defence is the denial of the charge and the defence has also examined three witnesses, out of whom DW-1 Shakur Mian and DW-2 Jahoor Ansari, are the neighbours of the informant and the deceased. P.C. in which they denied the circumstances appearing against them in the evidence of the prosecution. The defence is the denial of the charge and the defence has also examined three witnesses, out of whom DW-1 Shakur Mian and DW-2 Jahoor Ansari, are the neighbours of the informant and the deceased. These witnesses have stated that upon hearing the alarm raised by the informant, they had reached at the place of occurrence and had seen the dead body of the deceased lying in the pool of blood, but they were not informed by the informant as to who had committed the murder of the deceased. The fact that DW-1 Shakur Mian was a neighbour of the informant, is also admitted by PW-1 Md. Shabbir in his evidence. DW-3 Ishaque Ansari is the co-villager of accused appellant No. 1, and he has been examined on the point of alibi. He has stated in his evidence that on the date of occurrence, both the accused persons were in the village of accused appellant No. 1. 11. On the basis of the evidence on record, both the accused appellants have been convicted and sentenced for the offence as aforesaid, by the Trial Court below. 12. Learned counsel for the appellants submits that the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below are absolutely illegal and cannot sustained in the eyes of law, in as much as, the prosecution has not been able to prove the charge against the accused appellants beyond all reasonable doubts. It is submitted that the prosecution case is supported by only one witness, i.e. the informant PW-1 Md. Shabbir Hussain. No other witness has supported the fact that the appellants had committed the murder of the deceased. Learned counsel submitted that in view of the admitted enmity between the parties, it was not safe for the Trial Court to rely only on the sole evidence of the informant, particularly in view of the fact that it was alleged that the accused persons had entered the house after breaking the latch of the door, but the Investigating Officer PW-8 Ram Ikbal Singh has clearly stated that no latch of any door was found broken. Learned counsel for the appellant, lastly submitted that it is a fit case where the appellants should have been given the benefits of doubt. 13. Learned counsel for the appellant, lastly submitted that it is a fit case where the appellants should have been given the benefits of doubt. 13. Learned counsels appearing for the State and for the informant, on the other hand, have opposed the submissions made by the learned counsel for the appellant and submitted that the prosecution case is fully supported by PW-1 Md. Shabbir Hussain, who is the informant as well as the eyewitness of the occurrence, who has given in detail the manner of the occurrence as to how his father was dragged out to the courtyard from the room and assaulted by the wooden shaft on his head, due to which he died at the spot. It is submitted that the ocular evidence of this witness is fully supported by the medical evidence of PW-6 Dr. Shailendra Kumar, who had found injuries on the head of the deceased, which were ante mortem in nature and sufficient to cause death in the normal course. This witness has also proved the post-mortem report, which was marked Ext.4. Learned counsels accordingly, submitted that the prosecution has been able to prove the charge against the accused appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed against the appellants by the Trial Court below. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is supported only by PW-1 Md. Shabbir Hussain, who is the informant and the eyewitness to the occurrence. Though this witness has stated that on the alarm raised by him about 30-40 persons had assembled at the place of occurrence, but the fact remains that the other witnesses, who had reached at the place of occurrence upon hearing alarm raised by the informant, only stated about presence of the dead body in the pool of blood and they have stated that they were not informed by the informant that the appellants had committed the murder of the deceased. The enmity between the prosecution side and the defence side is also an admitted fact and it is also alleged that prior to this occurrence also, the accused persons had attempted to kill the deceased, but they had not succeeded in their attempt. Though in the evidence of the informant PW-1 Md. The enmity between the prosecution side and the defence side is also an admitted fact and it is also alleged that prior to this occurrence also, the accused persons had attempted to kill the deceased, but they had not succeeded in their attempt. Though in the evidence of the informant PW-1 Md. Shabbir Hussain it has come that the accused persons had entered the house after breaking the latch of the door, but the Investigating Officer PW-8 Ram Ikbal Singh has clearly stated that no one could have entered the house without breaking the latch of the door and no latch of the door was found to be broken. We are of the considered view that this evidence clearly makes the entry of the accused persons into the house doubtful, and in view of the fact that enmity is admitted between the parties, we are also of the considered view that it was not at all safe to convict and sentence the appellants only on the basis of the sole evidence of the informant PW-1 Md. Shabbir Hussain, with whom admittedly the accused persons were in inimical terms. As such, even though the prosecution case is supported by the informant, the appellants ought to have been given the benefits of doubt and the impugned Judgment of conviction and the Order of sentence cannot be sustained in the eyes of law. 15. In view of the aforesaid discussions, the impugned Judgment of conviction dated 31.07.2006 and Order of sentence dated 05.08.2006, passed by the learned Additional Sessions Judge, FTC - II, Dhanbad, in Sessions Trial No. 264 of 2004, are hereby, set aside. Both the appellants are given the benefits of doubt and they are acquitted of the charge. The appellant No. 2 Shamshuddin Mian S/o Late Husaini Mian, is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case. Appellant No. 1 Shamshuddin Mian S/o Late Quadir Mian @ Churu Mian, is on bail. He is discharged from the liability of his bail bond. 16. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.