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2018 DIGILAW 132 (JHR)

Asgar Sheikh v. State of Jharkhand

2018-01-16

KAILASH PRASAD DEO

body2018
JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The instant criminal appeal has been preferred against the judgment of conviction and order of sentence dated 16.12.2003 passed by the Additional Sessions Judge-III, Raj Mahal in Sessions Case No. 207 of 1993/Sessions Trial No. 234 of 2002 whereby the Original Appellant No.1 Asgar Sheikh has been convicted for offence committed under Section 324 of the Indian Penal Code and Appellant No.2, Moti Sheikh has been convicted for offence committed under Section 324/34 of the Indian Penal Code, but no finding has been given with respect to Section 109 of the Indian Penal Code and both the appellants Asgar Sheikh who has been held guilty for offence under Section 324 and Moti Sheikh who has been held guilty for offence under Section 324/34 of the IPC have been awarded rigorous imprisonment for two years. 3. The prosecution case is based upon the fardbeyan of informant Kherul Mirza recorded by S.I., Md. Shibhi of Rajmahal P.S. on 30th April, 1988 at Barharwa Hospital at 10.30 a.m. where the informant Kherul Mirza. PW 6 has state that house of Moti Sheikh is situated besides his house and yesterday Friday (29.4.1988) at around 6.30 p.m., Moti Sheikh and Asgar Sheikh, appellant No. 2 and No. 1 respectively were sitting in their house with some outsider and were taking toddy. Yesterday Moti Sheikh and Asgar Sheikh were taking liquor with some outsider in his house and started abusing the informant upon which he objected to Moti Sheikh and Asgar Sheikh as their family members including daughter and the wife are residing so they may not take toddy here. Upon this both the accused persons abused the informant and Asgar Sheikh went into his house and came with a hasua (sharp cut weapon) and stabbed on the left abdomen of the informant. Moti Sheikh, appellant No.2 was instigating by saying 'kill him'. The informant fell on the ground in the injured condition. On raising alarm, the brother of the informant, Temur Mirza came for rescue, who was also assaulted by hasua on his left hand and said Temur Mirza is under treatment at Gwalkhor hospital. On raising alarm co-villagers Hanif Khan, Sochna Turi, Sudhan Mian and others came there. Because of late night and due to non-availability of conveyance came to Barharwa for treatment. On raising alarm co-villagers Hanif Khan, Sochna Turi, Sudhan Mian and others came there. Because of late night and due to non-availability of conveyance came to Barharwa for treatment. Fardbeyan was signed by Khan Mirza and Imam Hussain. That after investigation, the police submitted charge-sheet vide Charge Sheet No. 11 of 1988 dated 7.5.1988 against both the accused person under Sections 324 and 307/34 of the IPC. That learned judicial Magistrate took cognizance of the offence and committed the case to the Court of Sessions. That the charges has been framed against both the appellants on 17.1.1996. Asgar Sheikh and Moti Sheikh both have been jointly charged under Section 307/34 and Asgar Sheikh has been separately charged under Section 34 of the IPC and Moti Sheikh has been separately charged under Section 109 of the IPC. Both the appellants were pleaded not guilty and thus they were put under trial. 4. That the prosecution has examined altogether six witnesses. Apart from this, the prosecution has also proved and exhibited the signature of Sachin Mirdha (PW 5) on the seizure list as Exhibit-1. Signature of Kherul Mirza on the fardbeyan has been exhibited 1/1 and signature of Imam Sheikh on the fardbeyan has been exhibited 1/2. The fardbeyan has also been exhibited and proved and marked as Exhibit-2. In this case the prosecution has not proved the medical report nor the Doctor and the Investigating Officer has been examined. Hanif Mian has been examined as PW 1. Budhan Miyan has been examined as PW 2 and both have been declared hostile by the prosecution. Abul Hussain has been examined as PW 3 but in his examination-in-Chief this witness has stated that he has no knowledge about the occurrence, although this witness has not been declared hostile by the prosecution but his evidence has no evidentiary value, so far this case is concerned. 5. Sekhan Bibi, wife of the informant has been examined as PW 4. She claims herself to an eye-witness to the occurrence who on raising alarm went to the place of occurrence and witnessed the entire occurrence where his husband has been assaulted by Asgar Sheikh by hasua on the abdomen and she has further stated that on alarm her elder brother-in-law, Temur came. She claims herself to an eye-witness to the occurrence who on raising alarm went to the place of occurrence and witnessed the entire occurrence where his husband has been assaulted by Asgar Sheikh by hasua on the abdomen and she has further stated that on alarm her elder brother-in-law, Temur came. He was also assaulted on the left hand and thereafter both were taken to Gwalkhor Hospital for treatment at 9.30 p.m. where they were treated and after treatment her husband. Kherul Mirza was brought to home and on the next date at 6 a.m. her husband was again taken at Barharwa Hospital for treatment but since there was no improvement, in the night her husband was taken to Maldah. The witness has identified accused Asgar Sheikh and Moti Sheikh present in the dock. A long cross-examination of this witness has been made by the defence to the effect that this witness has admitted during cross-examination that Firoza Bibi has also filed a criminal case against her husband and others for the same incident occurred on same date and time of occurrence. The entire cross-examination was made with respect to some dispute related to the passage and at the time of occurrence, she was alone in her house. This witness in paragraph 19 of her cross-examination has stated that after going to the place of occurrence she could know that Asgar Sheikh has assaulted her husband on his abdomen by hasua. She has further claimed that she has witnessed the occurrence and the entire occurrence has witnessed by this witness along with her elder brother-in-law. Temur Mirza. This witness has stated in paragraph 37 of her cross-examination that the accused has stabbed her husband by hasua. The injury was tied by the gamachha and her husband was lying unconscious. The villagers came namely Sachin Turi; Hanif Khan. Budhan Mian and others brought her husband on a cot to Gwalkhor Hospital at 9.30 p.m. but she did not went to the hospital. She has further stated that police was not informed in the night nor any treatment to the injured was given in the night. Her husband was unconscious in the morning and in the stage of unconsciousness, he was brought to the hospital. She has further stated that during treatment she never met her husband and after 13 days when her husband returned she met her husband. 6. Her husband was unconscious in the morning and in the stage of unconsciousness, he was brought to the hospital. She has further stated that during treatment she never met her husband and after 13 days when her husband returned she met her husband. 6. That Sachin Mirdha has been examined as PW 5. This witness is a hearsay witness who went to the place of occurrence after hearing alarm. This witness has further stated that Sub-Inspector of Police went to the house of Moti Sheikh and Asgar Sheik and arrested them and a blood-stained hasua was also seized and a seizure list was prepared. The witness has been proved his signature on seizure list and marked as Exhibit -1. This witness has stated in paragraph 23 of his cross-examination that when he reached to the place of occurrence victim Kherul Mirza was not unconscious, he was slightly in a state of consciousness. The evidence of this witness is not relevant for the adjudication of this case. He is a hearsay witness. This has given a contradictory evidence of PW 4 and to the evidence of Sekhan Bibi. 7. The victim of the case Kherul Mirza has been examined as PW 6 in this case. The victim has stated that when he went to protest against the accused persons not to abuse him, who which on the order of Moti Sheikh, (Appellant No.2), Asgar Sheikh, (Appellant No.1) assaulted him by hasua in the left side of his abdomen and when his brother Temur Mirza came he was also assaulted by Asgar Sheikh (appellant No.1) on his left hand. Victim Kherul Mirza has stated that he was taken to Gwalkhore Government Hospital. From there, doctor referred him to Barharwa Hospital on the very next date, police recorded his fardbeyan and victim has proved his signature on the fardbeyan and marked as Exhibit-1/1 and Imam Hussain has also put. his signature on the fardbeyan which has been proved and marked as Exhibit -1/2 on his fardbeyan recorded by Police Inspector, which has been marked as Exhibit-2. The victim Kherul Mirza has further stated that after remained for 12-13 days at Barharwa Hospital he was referred to Malda Government Hospital where he remained for 12-13 days. his signature on the fardbeyan which has been proved and marked as Exhibit -1/2 on his fardbeyan recorded by Police Inspector, which has been marked as Exhibit-2. The victim Kherul Mirza has further stated that after remained for 12-13 days at Barharwa Hospital he was referred to Malda Government Hospital where he remained for 12-13 days. This witness has stated in paragraph 37 of his cross-examination, that when accused assaulted him, he raised hulla and after sustaining injury, after one minute he fell on the ground and after felling on the ground he raised alarm. The first person who came to the place of occurrence, was his elder brother Temur Mirza, who asked him about the injury and on raising alarm by Temlir Mirza, other persons namely Sachin Turi came after 2-3 minutes and saw him. At that time he was not unconscious, after Sachin Mirdha @ Turi, Hanif Khan, Budhan Mian and others came. The witness has stated that when the assault was made, he was wearing a lungi and gamchha, and both got cut marks but with the help of same gamchha his injury was tied. At that time, he was also not unconscious. The witness has further stated, that he was taken to Gwalkhore Hospital by co-villagers on a cot where he was treated by senior doctor F. Sheikh and his Assistant doctor Dileep Singh and remained for 2-3 hours at Gwalkhore Hospital along with Akhsar Khan, Abul Hussain, Dukhan Turi. Imam Hussain, Amir Khan. Sonu Khan, Mitthun Turi and his wife and brother Temur Mirza. The doctor has found single injury on his person. On the very next date Kherul Mirza was referred to Barharwa Hospital at 12 noon. Till he reached Barharwa Hospital he was not unconscious. Before going to Baraharwa Hospital, he went to Barharwa Police Station from where he was sent to Barharwa Hospital but his statement was not recorded at Barharwa Police Station. From Barharwa Hospital he was referred to Sahibganj but he went to Malda. This witness has stated that no paper of treatment either at Gwalikhore or Barharwa Hospital nor any paper to show that he has been referred has been brought in this case. 8. After recording the evidence of the prosecution the statement of the appellants have been recorded under Section 313. Cr PC recorded on 1st February 2001. Both the accused appellants have denied about the occurrence. 8. After recording the evidence of the prosecution the statement of the appellants have been recorded under Section 313. Cr PC recorded on 1st February 2001. Both the accused appellants have denied about the occurrence. 9. That learned counsel for the appellants, Mr. Gautam Kumar has submitted that from. perusal of the evidence of the prosecution it appears that there are two eye-witnesses to the occurrence. One is the victim PW 6 (Kherul Mirza) and other is his wife (PW 4). But from perusal of the evidence of PW 4 and PW 6 particularly paragraph 36 to 38 of PW 6, presence of his wife is not proved, as this witness has stated that on raising alarm his brother Temur Mirza, was the first person who came there, and after that Sachin Turi and Hanif Khan, It Boddhan Miyan and others came. So far a the statement of his wife (PW 4) is s concerned, she says that she was the first person who came and thereafter Temur came and both of them have seen the occurrence. In this case Temur Mirza has not been examined, as such the statement of PW 4 She khan Bibi is not accepted by this Court in view of the statement of PW 6 (Kherul Mirza) victim of the case. 10. That the learned trial Court on the basis of evidence and materials available on record and convicted appellant No. 1 (Asgar Sheikh) under Section 324, IPC and appellant No. 2 (Moti Sheikh) under Section 324/34, IPC and sentenced them from rigorous imprisonment for 2 years separately. 11. That the learned counsel for the appellant has further submitted that Imam Hussain has also not been examined. As such this Court is of the opinion that evidence of PW 4 which is contradictory to the evidence of PW 6 informant, Kherul Mirza, thus Shekhan Bibi (PW 4) is not an eye-witness to the occurrence. The learned counsel has further submitted that in his case the Investigating Officer as well as the doctor have not been examined. The learned counsel has submitted that the injury report of Kherul Mirza, PW 6 or so called witness Temur Mirza who has also sustained injury have not been brought on record nor proved or marked exhibit. The learned counsel has further submitted that in his case the Investigating Officer as well as the doctor have not been examined. The learned counsel has submitted that the injury report of Kherul Mirza, PW 6 or so called witness Temur Mirza who has also sustained injury have not been brought on record nor proved or marked exhibit. Doctor has not been examined in this case and as such in absence of any medical evidence, the conviction of the appellant under Section 324, IPC, so far Asgar Sheikh (Appellant No. 1) is concerned and 324/34, IPC, so far as Moti Sheikh (appellant No.2) is concerned are not sustainable in the eyes of law. The learned counsel has further submitted that the contradictory statement of PW 4, PWs 5 and 6 goes to the root of the case, which creates doubt about the presence of such witness as at the time of occurrence. The evidence of PW 4 cannot be accepted in view of the fact that from Gwalkhore Hospital, her husband was brought to her village in the night, but PW 6 (the victim) Kheml Mirza, himself has said that he remained in hospital for the whole night and from there he was referred to Barharwa Hospital. Such contradiction in the statement of PW 4, Sekhan Bibi creates doubt about her credential. The non-examination of the Investigating Officer has certainly caused prejudice to the appellants as the appellants could not get ample opportunity to cross-examine him, so far the place of occurrence is concerned, the manner of occurrence and seizure of bloodstained hasua are concerned. Non-production of seized hasua also creates doubt as the prosecution has failed to prove that the blood found on the seized hasua was a human blood of Kherul Mirza (PW 6). The Investigating Officer has not investigated the case properly by taking the blood sample of the victim, bloodstained soil and the bloodstained hasua for comparison by sending them, before the Forensic Laboratory to establish the prosecution case. If the prosecution fails to establish the case, benefit of doubt must go in favour of the appellants. Non-examination of the doctor and non-proving of the medical evidence also creates doubt about the prosecution case. In such background the learned counsel for the appellant has submitted that it is a fit case where the benefit of doubt may be given to the appellants. 12. Non-examination of the doctor and non-proving of the medical evidence also creates doubt about the prosecution case. In such background the learned counsel for the appellant has submitted that it is a fit case where the benefit of doubt may be given to the appellants. 12. Learned counsel for the State, Mr. P.K. Appu, has submitted that there are no major contradiction in the evidence of the prosecution witnesses particularly, PW 4 and PW 6, but has accepted to the extent that, there are minor contradictions. 'The learned State counsel has fairly submitted that the, Investigating Officer has not been examined in this case nor the doctor nor medical report of Kherul Mirza, PW 6 (victim and informant) of the case or his brother Temur Mirza has been brought on record. But has submitted that because of the laches on the part of the investigating agency, a case of the prosecution cannot be disbelieved and has prayed that impugned judgment of conviction and order of sentence does not require any interference by this Hon'ble Court. FINDINGS :- 13. After having heard the parties, perused the record and evidence of the prosecution witnesses, it appears that Kherul Mirza (PW 6) has sustained injury but the injury report has not been brought on record. Such injury must be proved and non-examination of the doctor has caused serious prejudice to the appellants. The non-examination of the Investigating Officer has also caused serious prejudice to the appellant as the appellant could not cross-examined him on the point of place of occurrence and manner of occurrence. The prosecution has also not brought on record the injury reports of Kherul Mirza (PW 6) and Temur Mirza, who has not been examined in this case. The prosecution has also not brought on record the treatment given to Kherul Mirza at Gwalkhore Hospital or Barharwa Hospital or his reference to Sahebganj, but he went to Malda and in absence of such documents the conviction of the appellants under Section 324, IPC so far Asgar Sheikh (appellant No.1) is concerned and 323/34, IPC so far Moti Sheikh (appellant No.2) are concerned are not sustainable in the eyes of law. 14. In the result, judgment of conviction and order of sentence dated 16.12.2003 passed. 14. In the result, judgment of conviction and order of sentence dated 16.12.2003 passed. by the learned Additional Sessions Judge-III at Rajmahal, in Sessions Case No. 207 of 1993 and in Sessions Trial No. 234 of 2002 is hereby set aside and the appellant is acquitted of the charges under Sections 109 and 324, IPC and under Section 307/34, IPC by giving benefit of doubt. Appellants are on bail, hence, they are discharge from the liabilities of their bail bond. 15. Accordingly, the appeal is allowed and disposed of. 16. Let the record be sent to the lower Court at once.