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2018 DIGILAW 135 (JHR)

Mansoor Mian v. State of Bihar (Now Jharkhand)

2018-01-16

ANANDA SEN, H.C.MISHRA

body2018
JUDGMENT : H.C. Mishra, J. Originally there were six appellants, but during the pendency of this appeal, two of them died. By order dated 1.9.2016, this appeal abated qua the deceased-appellants, Nabi Mian and Ismail Mian, and is now surviving only with respect to the aforementioned appellants. 2. By the same order, the connecting Criminal Appeal (DB) No.91 of 1992 (R) also stood abated, as the sole appellant therein, namely, Majid Mian was reported to be dead. 3. Heard learned counsel for the surviving appellants and learned counsel for the State. 4. The surviving appellants are aggrieved by the judgment of conviction and order of sentence dated 17.3.1992, passed by the learned 4th Additional Sessions Judge, Giridih, in Sessions Trial No. 79 of 1989, whereby, the surviving appellants have been found guilt and convicted for the offence under Sections 302/149 of the Indian Penal Code. The appellants Kharthali Mian and Alijan Mian have also been found guilty and convicted for the offence under Section 148 of the Indian Penal Code, whereas the other appellant, namely Mansoor Mian has been found guilty and convicted for the offence under Section 147 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants convicted for the offence under Sections 302/149 of the Indian Penal Code have been sentenced to undergo R.I. for life for the said offence, whereas the appellants, convicted for the offence under Section 148 of the Indian Penal Code, were also sentenced to undergo R.I. for two years and the appellant, Mansoor Mian and the other deceased accused convicted for the offence under Section 147 of the Indian Penal Code, were also directed to undergo R.I. for one year, and all the sentences were directed to run concurrently. It may be stated that the main accused, Majid Mian (since dead), was found guilty and convicted by the trial Court below for the offences under Sections 302 and 148 of the Indian Penal Code, and sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code. 5. It may be stated that the main accused, Majid Mian (since dead), was found guilty and convicted by the trial Court below for the offences under Sections 302 and 148 of the Indian Penal Code, and sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code. 5. The prosecution case was instituted on the basis of the First Information Report, lodged by the informant Bhikhan Mian, at Deori Police Station in the District of Giridih, on 01.02.1988, at about 5.30 p.m. in the evening, stating therein that his brother-in-law, Alijan Mian came to his house at about 10.00 a.m. and demanded some fire-wood, whereupon he along with his brother assured him to send the fire-wood to his house. Thereafter, they took meal and loaded the fire-wood on a bullock cart and the informant along with his brother Sabir Mian and nephew, Sudo Mian proceeded with the bullock cart loaded with fire-wood towards the village of his brother-in-law. When they crossed the Chalkhu river, accused Majid Mian and Alijan Mian (this Alijan Mian is an accused and not the brother-in-law of the informant) came there stopped the bullock cart and asked them to return back, whereupon, they informed them that they were taking the fire-wood to their brother-in-law's place. It is alleged, that Alijan Mian and Majid Mian were having bombs in bags. Alijan Mian took out a bomb from his bag and threw upon them, which exploded on the ground, but no one was injured, whereupon, they started raising alarm and his elder brother, Kailu Mian and brother-in-law, Alijan Mian came there. In the meantime, Khartali Mian and Karim Mian, both armed with bows and arrows and Ismail Mian (since dead), Mansoor Mian and Nabi Mian (since dead) armed with lathi and stones surrounded them. Thereafter, brick-batting started from both sides, but no one was injured thereby. In the meantime, Alijan Mian hurled another bomb which also exploded. Where upon Kailu Mian, the brother of the informant, requested the accused persons with folded hands not to kill them. Thereafter, brick-batting started from both sides, but no one was injured thereby. In the meantime, Alijan Mian hurled another bomb which also exploded. Where upon Kailu Mian, the brother of the informant, requested the accused persons with folded hands not to kill them. In the meantime, Khartali Mian shot arrow, which hit the leg of his brother, Kailu Mian and thereafter, the accused Alijan Mian, Khartali Mian and Karim Mian gave orders to kill them with bomb, whereupon, Majid Mian took out a bomb from his bag and threw on Kailu Mian, which hit his chest and exploded, due to which, Kailu Mian fell down at the spot. In the meantime, several villagers also came there and the accused persons fled away. There was a wound on the chest of Kailu Mian, which he tied with a towel. They brought Kailu Mian towards the river and also gave the water in his mouth, but he died. As to the cause of occurrence, it is stated that Nabi Mian had sold the land of the informant side to Khartalli Mian, Alijan Mian and Majid Mian about one and half years ago, but in spite of that, the land was in possession of the informants' side and the accused persons were not allowed to take possession of the land, due to which, they had committed the offence. On the basis of the FIR, Deori P.S. Case No.13 of 1988 corresponding to G.R. No.145 of 1988 was instituted for the offence under Sections 302/34 of the Indian Penal Code as also under Sections 3 and 5 of the Explosive Substance Act against the named accused persons, and investigation was taken up. After investigation, the police submitted charge-sheet in the case. 6. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offences under Sections 302, 302/149, 148 and 147 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. 7. In course of trial, the prosecution has examined nine witnesses, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased, out of whom PW 6 Sudo Mian was only tendered by the prosecution. The defence has proved some documents. 8. PW 8 Bhikhan Mian is the informant of the case. 7. In course of trial, the prosecution has examined nine witnesses, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased, out of whom PW 6 Sudo Mian was only tendered by the prosecution. The defence has proved some documents. 8. PW 8 Bhikhan Mian is the informant of the case. He has stated that the occurrence had taken place more than two years ago on a Monday. His brother-in-law, Alijan Mian had come to his house at about 10.00 a.m., asking for the firewood, whereupon he said that he would send the firewood to him. At about 2.30 p.m., he loaded the firewood on the bullock cart and he along with his brother, Sabir Mian and nephew Sudo Mian were taking the bullock cart, loaded with firewood to the village of his brother-in-law. When they crossed Chalkhu river, and entered the boundry of Hathgarh village, the accused Majid Mian and Alijan Mian stopped the bullock cart and asked them to return back. They informed them that they were going to his brother-in-law's place. The accused Majid Mian and Alijan Mian were having bags, and when they did not return back. Alijan Mian took out a bomb from his bag and hurled towards them, which exploded on the ground, but no one was injured. They raised alarm and in the meantime, his brother Kailu Mian and brother-in-law. Alijan Mian also came there. Khartali Mian and Karim Mian also came there armed with bows and arrows. Mansoor Mian, Ismile Mian and Nabi Mian also came armed with lathi and stones and they surrounded them. Alijan Mian took out another bomb and threw it on the ground, which also exploded with a loud sound, whereupon, Kailu Mian requested them with folded hands not to kill them. Khartali Mian shot an arrow which hit the leg of Kailu Mian. His brother took out the arrow and as soon as he stood up, they asked Majid Mian to kill him, whereupon Majid Mian took out a bomb from his bag and hurled on his brother, which hit the right side, chest of his brother and exploded with a loud sound. Kailu Mian fell down and the accused persons fled away. He tied the wound of his brother with a towel. Durga Rai, Budhan Thakur, Hemlal Pandit and several other persons reached there. Kailu Mian fell down and the accused persons fled away. He tied the wound of his brother with a towel. Durga Rai, Budhan Thakur, Hemlal Pandit and several other persons reached there. This witness tried to give water to his brother but he could not take the water and died. Thereafter, he went to the house of his brother-in-law and took his elder brother and went to the Deori Police Station. He had given the information to the police which was recorded by the police and read over to him and he put his signature on the FIR. He has identified his signature on the FIR and the entire FIR was marked Exhibit-3. The police also came to the place of occurrence and saw the dead body. As it was night by that time, the inquest report was prepared in the morning. This witness was present near the dead body for the whole night. He has identified the inquest report which was prepared by the Police Officer, on which, this witness had also put his signature and the same was marked Exhibit-4. This witness has also stated that the Police Officer seized the arrows, one of which was bloodstained, pieces of paper, sutli, iron pieces and the soil from the place of occurrence and had prepared the seizure list in his presence, on which, Habib Mian had put his signature and another witness also put his thumb impression in the presence of this witness. He has identified the said seizure list also, which was marked Exhibit-5. He has stated that the occurrence had taken place due to the land dispute between the parties. He has identified the accused present in the Court and has claimed to identify the other accused persons also. He has also stated that the police sent the dead body for post-mortem examination. In his cross-examination, this witness has stated that the place of occurrence is at a distance of about one and half kilometer from his house. The accused Nabi Mian was not his relative. He had sold the land to the other accused persons and there was land dispute between the parties since the date of registration of the sale-deed. Nabi Mian had forcibly sold the land of this witness to the accused persons. He has denied the suggestion of giving the false evidence. 9. The accused Nabi Mian was not his relative. He had sold the land to the other accused persons and there was land dispute between the parties since the date of registration of the sale-deed. Nabi Mian had forcibly sold the land of this witness to the accused persons. He has denied the suggestion of giving the false evidence. 9. PW 1 Durga Rai, PW 4 Alijan Mian and PW 5 Sabir Mian have also supported the prosecution case, as stated by the PW 8, Bhikan Mian, the informant. These witnesses have also been put to extensive cross-examinations, but there is nothing in their cross-examinations to discredit their testimony. 10. PW 2 Budhan Thakur had reached the place of occurrence upon hearing the first sound of bomb explosion. When he came to the place of occurrence, he saw Majid Mian, Alijan Mian and Khartali Mian. The accused Alijan Mian and Majid Mian were having bags and Kharthali Mian was armed with bow and arrow. He has stated that Majid Mian assaulted Kailu Mian by bomb and Kharthali Mian shot an arrow on his leg. This witness has stated that other accused persons were also present there, but he was not knowing them. He has also stated that the wife of Kailu Mian also came there and she tried to give water to her husband from the river, but Kailu Mian died at the spot. A large portion of his chest was wounded. There is nothing of much importance in his cross-examination also. 11. PW 3 Japtalli Mian is the elder brother of Alijan Mian, the brother-in-law of the informant. He has stated that on the date of occurrence at about 5.00 p.m., he was in his house when Bhikhan and Alijan came weeping to his house and informed that Majid Mian and other accused, had killed their brother Kailu Mian. They also requested him to accompany them to the Police Station, and informed that the dead body was still lying near the river. Thereafter, this witness went to the Police Station along with them, where Bhikhan Mian lodged the First Information Report, which was written by the Police Officer and read over, and finding the same to be true, Bhikan Mian put his signature on it. This witness also put his signature which he has identified and the same was marked Exhibit-1. Alijan Mian had put his thumb impression. 12. This witness also put his signature which he has identified and the same was marked Exhibit-1. Alijan Mian had put his thumb impression. 12. PW 7 is Dr. L.P. Singh, who had conducted the post-mortem examination on the dead body of the deceased on 2.2.1988 and had found the following ante-mortem injuries on the dead body :- "Big lacerated wound damaging the skin, muscles, blood vessels, bones, pleura and lungs situated on the right side of chest 16" x 12" x lung deep. On search from the wound, pieces of metal plates were found. On dissection of the wound, 3/4th of the right lungs were found damaged and upper ribs were found fractured. Liver was also found ruptured." This witness had stated that the small metal plates were handed over to the concerned constable. Death was caused due to shock and heamorrhage as a result of the above injuries and from the findings of the wounds, it appeared that the wound was caused by some explosive like substance such as bomb. He has identified the post-mortem report to be in his pen and signature which was marked Exhibit-2. 13. PW 9 Nagendra Kumar Singh, is the I.O. of the case. This witness has stated that on 1.2.1988, he was posted in Deori Police Station as Officer-In-charge. At 5.30 p.m., Bhikhan Mian along with Alijan Mian and Japtalli Mian came at the Police Station. He recorded the statement of Bhikhan Mian and lodged the FIR. He has identified the FIR which was earlier marked Exhibit-3. He recorded the re-statement of Bhikhan Mian and also recorded the statements of Alijan Mian and Japtalli Mian. He came to the place of occurrence and saw the dead body of Kailu Mian, but as it was late night, he could not prepare the inquest report in the night. On 2.2.1988 at 6:00 a.m. in the morning, he prepared the inquest report of the dead body, which he has proved, which was earlier marked as Exhibit-4. He inspected the place of occurrence and has given the details of the place of occurrence. He found the blood at the place of occurrence in the radius of about one feet. He collected the bloodstained soil and also collected four arrows, one of which was bloodstained, small pieces of papers, iron etc., and prepared the seizure list, which he has proved and the same was earlier marked as Exhibit-5. He found the blood at the place of occurrence in the radius of about one feet. He collected the bloodstained soil and also collected four arrows, one of which was bloodstained, small pieces of papers, iron etc., and prepared the seizure list, which he has proved and the same was earlier marked as Exhibit-5. He prepared the sketch map of the place of occurrence, which he has proved and the same was marked Exhibit-6. He sent the dead body for post-mortem examination and recorded the statements of the witnesses and thereafter, he handed over the charge of investigation due to his transfer. Though this witness has been put to extensive cross-examination, but there is nothing of much importance in his cross-examination. 14. The statements of the accused persons were recorded under Section 313 of the Cr PC, in which, they have denied the evidence against them. The defence has proved three documents which are the certified copies of the FIR in two cases and the charge-sheet, which were marked Exhibit-A series. 15. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charges against the appellants beyond all reasonable doubts. It is submitted that though the witnesses have taken the names of the accused persons, but there is allegation of assaulting the deceased only against the accused, Majid Mian, who is already dead and whose appeal has already abated. There is allegation upon Kharthali Mian also to have assaulted the deceased by arrow on his leg, but there is no mention of that injury in the post-mortem report. Learned counsel submitted that the enmity between the parties is an admitted position due to the land dispute, and accordingly, the false implication of the accused persons cannot be ruled out. Learned counsel for the appellants accordingly, submitted that these surviving appellants are entitled to the benefits of doubt. 16. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution witnesses have fully supported the case and the ocular evidence of the witnesses is fully corroborated by the medical evidence of PW 7 Dr. L.P. Singh and the post-mortem report proved by him as Exhibit-2. 16. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution witnesses have fully supported the case and the ocular evidence of the witnesses is fully corroborated by the medical evidence of PW 7 Dr. L.P. Singh and the post-mortem report proved by him as Exhibit-2. Learned counsel accordingly, submitted that there is no illegality in the impugned judgment of conviction and order of sentence, passed by the trial Court below. 17. Having heard the learned counsels for both the sides and upon going through the record, we find that PW 1 Durga Rai, PW 2 Budhan Thakur, PW 4 Alijan Mian, PW 5 Sabir Mian and PW 8 Bhikhan Mian are the eye-witnesses to the occurrence and they have fully supported the prosecution case. PW 1 Durga Rai and PW 2 Budhan Thakur are the independent eye-witnesses. PW 1 was present at the place of occurrence from before and he has also fully supported the prosecution case, naming all the accused persons and the role played by all the accused. Though PW 2 Budhan Thakur has named only three persons, namely Majid Mian, Alijan Mian and Kharthali Mian, but he has stated that the other accused persons were also there, whom he did not identify. These witnesses have stated that the Kharthali Mian had assaulted the deceased by arrow and Majid Mian had assaulted by bomb, causing the death of the deceased. Alijan Mian was also armed with a bag containing bomb and had hurled the bombs, which had exploded. Though we find from the post-mortem report that there is no mention about the injury caused by arrow in the leg of the deceased, but it appears that the Doctor, conducting the post-mortem examination, confined his examination only towards the bomb injury found on the chest of the deceased. He has not stated about any other injury on the other part of the body. In the inquest report of the dead body, proved as Exhibit-4, there is mention of bleeding injury on the right leg of the deceased, apart from the bomb injury on the chest. 18. He has not stated about any other injury on the other part of the body. In the inquest report of the dead body, proved as Exhibit-4, there is mention of bleeding injury on the right leg of the deceased, apart from the bomb injury on the chest. 18. On the basis of the evidence on record, we are of the considered view that the prosecution has been able to bring home the charges against the accused persons that all the accused persons, forming an unlawful assembly, variously armed with deadly weapons, had committed the offence in prosecution of the common object of that unlawful assembly. The main allegation of assault by bomb upon the deceased was on the accused, Majid Mian, who has been found guilty for the offence under Section 302 of the Indian Penal Code and had filed his appeal separately, which has since abated, due to his death, during the pendency of the appeal. The evidence on record shows that other accused-appellants were also the members of the same unlawful assembly variously armed, and they acted in the prosecution of the common object of the unlawful assembly, as is apparent from the fact that the accused-appellant, Alijan Mian had hurled two bombs which had exploded on the ground, Karthali Mian assaulted the deceased by arrow on his leg and the appellants Mansoor Mian and Karim Mian were also armed with lathi and stones and had surrounded the deceased, the informant and their brother-in-law. We are of the considered view that on the basis of the evidence on record, all the appellants have been rightly found guilty, convicted and sentenced by the trial Court below, for the offence under Sections 302/149, 148 and 147 of the Indian Penal Code. 19. For the foregoing reasons, we do not find any illegality in the impugned judgment of conviction and order of sentence dated 17.3.1992, passed by the learned 4th Additional Sessions Judge, Giridih, in Sessions Trial No. 79 of 1989, convicting and sentencing the appellants, as aforesaid, which we hereby, affirm. The surviving appellants Mansoor Mian, Khartali Mian, Alijan Mian and Karim Mian, are on bail. Their bails are hereby, cancelled. The appellants are directed to surrender in the Court below forthwith for serving out their sentences passed by the trial Court. The surviving appellants Mansoor Mian, Khartali Mian, Alijan Mian and Karim Mian, are on bail. Their bails are hereby, cancelled. The appellants are directed to surrender in the Court below forthwith for serving out their sentences passed by the trial Court. The trial Court below is also directed to issue process forthwith, compelling the surrender/production of the surviving appellants for serving out the sentence. 20. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment. I agree. Appeal dismissed.