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2019 DIGILAW 234 (JHR)

Akbar Mian v. State Of Jharkhand

2019-01-23

AMITAV K.GUPTA, H.C.MISHRA

body2019
JUDGMENT 1. All these three appeals arise out of the same impugned Judgment and as such they have been heard together, and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants, learned counsel for the State and also the counsel for the informant. 3. The appellants are aggrieved by the impugned Judgment of conviction dated 29.08.2005 and Order of sentence dated 31.08.2005, passed by the learned Additional Sessions Judge, Fast Track Court No.VIII, Hazaribagh, in S.T.No.340 of 1989, whereby the appellant Sadik Mian has been found guilty and convicted for the offences under Section 302 of the Indian Penal Code , and Section 27 of the Arms Act , whereas the other appellants have been found guilty and convicted for the offence under Sections 302/149 of the Indian Penal Code . Upon hearing on the point of sentence, the appellant Sadik Mian has been sentenced to undergo rigorous imprisonment for life, with a file of Rs.500/-, for the offence under Section 302 of the Indian Penal Code, and rigorous imprisonment for three years for the offence under Section 27 of the Arms Act, whereas other appellants were sentenced to undergo rigorous imprisonment for life and a fine of Rs.500/- each, for the offence under Sections 302/149 of the Indian Penal Code. Both the sentences of the appellant Sadik Mian were directed to run concurrently. 4. The prosecution case was instituted on the basis of fardbeyan of the informant Janki Yadav, while he was alive and undergoing treatment at Sadar Hospital, Hazaribag, recorded on 03.01.1989 at about 10:15 A.M., wherein he has stated that on the previous night at about 12:00 A.M., he was crushing sugarcane in their field, along with his father Rongo Yadav and brother Mohan Yadav. In the meantime, all the accused persons, viz, Sadik Mian, Rasool Mian, Mohammad Mian, Razzak Mian, Akbar Mian and Diljan Mian, who were his co-villagers, came there and Sadik Mian, who was armed with gun, told that they will not kill his father, but they will kill only him, and he fired the gun injuring his fingers and lower portion of abdomen, whereupon he fell down. Due to the late night, they stayed there itself, and in the morning they come to Sadar Hospital, Hazaribagh, where he was undergoing treatment. Due to the late night, they stayed there itself, and in the morning they come to Sadar Hospital, Hazaribagh, where he was undergoing treatment. He has stated that the occurrence had taken place due to previous enmity between the parties, and there was proceeding under Section 107 of the Cr.P.C., between them. On the basis of the fardbeyan of the informant, Katkamsandi P.S. Case No. 1 of 1989, corresponding to G.R. No. 7 of 1989, was instituted against the named accused persons, for the offences under Sections 148, 143, 149, 324, 341 and 307 of the Indian Penal Code , and Section 27 of the Arms Act, and investigation was taken up. During treatment, the informant died and accordingly, Section 302 of the Indian Penal Code was also added. After investigation the police submitted the charge-sheet in the Court. 5. After commitment of the case to the Court of Session, charge was framed against the appellant Sadik Main for the offences under Section 302 of the Indian Penal Code, and Section 27 of the Arms Act, and against other appellants and the co-accused Mohammad Mian, for the offence under Sections 302/149 of the Indian Penal Code, and upon the accused persons'' pleading not guilty and claiming to be tried, they were put to trial. In course of trial seven witnesses were examined by the prosecution, including the I.O., and the Doctor, who has conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-3 Afinta Devi had only been tendered by the prosecution. 6. P.W.-1 Rongo Yadav and P.W.-2 Mohan Yadav are the father and brother respectively, of the deceased informant, they were present with the deceased at the time of occurrence, and are the eye witnesses to the occurrence. They have stated that at the time of occurrence, they were crushing sugarcane in the their field, along with Janki Yadav, when Sadik Mian, Rasool Mian, Razzak Mian, Diljan Mian, Akbar Mian, and one more person came at the place of occurrence, variously armed by gun, lathi, etc. Both these witnesses have stated that Sadik Mian fired the gun upon the deceased Janki Yadav, injuring him in his hand and near his abdomen. In the morning they brought Janki Yadav to the Hospital, where his statement was recorded by the police, on which Janki Yadav put his thumb impression. Both these witnesses have stated that Sadik Mian fired the gun upon the deceased Janki Yadav, injuring him in his hand and near his abdomen. In the morning they brought Janki Yadav to the Hospital, where his statement was recorded by the police, on which Janki Yadav put his thumb impression. P.W.-1 Rongo Yadav had also put his thumb impression on the said fardbeyan. They have stated that at about 12:00 A.M., in the night, Janki Yadav died in the hospital itself. Both these witnesses have stated that in the previous month of Asharh, Sadik Mian had got their paddy crop grazed by cattle, due to which there was enmity between the parties and there was also a proceeding under Section 107 of the Cr.P.C., due to which the occurrence had taken place. They have identified the accused persons in the Court. In his cross-examination P.W.-1 RongoYadav has stated that he had brought his son to the hospital and the police had visited his village in his absence. He has also stated that they went straight to the hospital and the Doctor had informed the police, whereupon the police came to the hospital. Both these witnesses have stated in their cross-examination that prior to the recording of statement of the deceased by the police, no treatment was given to him, rather the treatment started only when fardbeyan was given by the deceased. Though these witnesses were cross-examined at length, but there is nothing else of much importance therein. It may be stated that these witnesses have not named the accused Mohammad Mian in their evidence. In their cross-examination P.W.-1 Rongo Yadav has stated that he could not identify Mohammad Mian in the night, whereas P.W.-2 Mohan Yadav has stated that he was not involved in the occurrence. 7. P.W.-5 Lato Yadav is the hearsay witness to the occurrence. This witness has stated that at the time of occurrence he was in his house and upon hearing the noise he came to the place of occurrence, where he found Janki Yadav having injury in his abdomen. Mohan Yadav and Rongo Yadav, who were present there, had informed him that Sadik Mian had assaulted Janki Yadav with firearm. He also accompanied the deceased to the hospital. Mohan Yadav and Rongo Yadav, who were present there, had informed him that Sadik Mian had assaulted Janki Yadav with firearm. He also accompanied the deceased to the hospital. He has stated that the seizure list was prepared, on which he had put his signature, which he has proved, upon which it was marked as Ext.-3. 8. P.W.-7 Bhikhan Mahto is only a witness to the inquest report and he had proved his signature on the inquest report, which was marked as Ext.-6/1. He has stated in his cross-examination that he had no personal knowledge about the occurrence. 9. P.W.-4 Dr. Subodh Sankar Sahai had conducted the post-mortem examination on the dead body of the deceased on 04.01.1989, and found the following ante-mortem injuries on the dead body:- 1. Lacerated wound with charred margin "x " x abdominal cavity deep on left lateral side in sub-coastal area. The injury was due to fire-arm. 2. A surgical stitched would 5" long on left paramedian. Abdominal cavity deep. 3. Surgical of ileum and transverse column. All other viscera were intact and pale. Stomach contained about six ounces of thick dark coloured fluid with faecal odour. Bladder was empty. The vertical surface of palm and fingers of right hand were lacerated. He has stated that the death was caused due to shock and hemorrhage caused by the above injuries. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext.-1. He has also proved the bed-head ticket of the deceased, which was marked Ext.-2. He has admitted in his cross-examination that he had operated upon the deceased at 10:40 A.M., on 03.01.1989 and he died at 2:30 A.M., on 04.01.1989. 10. P.W.-6 Nagendra Singh is the Investigating Officer of the case. He has stated that on 03.01.1989, he was posted at Katkamsandi Police Station as Officer-Incharge, and at about 11:15 A.M., he received the fardbeyan of Janki Yadav in the police station. He has proved the fardbeyan, the endorsements thereon, and the formal FIR, which were marked as Ext.-4, Ext. 4 series and Ext.-5 respectively. He has stated that he visited the hospital at 11:45 A.M., but at that time the deceased was in the operation room and was undergoing surgery, due to which he could not record his re-statement. He recorded the statements of the witnesses present at the hospital. 4 series and Ext.-5 respectively. He has stated that he visited the hospital at 11:45 A.M., but at that time the deceased was in the operation room and was undergoing surgery, due to which he could not record his re-statement. He recorded the statements of the witnesses present at the hospital. The clothes of the deceased were produced by Rongo Yadav, the father of the deceased, and he prepared the production-cum-seizure list which he has proved and the same was marked as Ext.-3. At about 17 hours he reached the place of occurrence, and he has given the details of the place of occurrence, where the equipments for crushing the sugarcane were found and crushed sugarcane were also scattered here and there. He has also stated that it had rained and the area had become muddy. He recorded the statements of other witnesses and on 04.01.1989 he got the information about the death of the informant, whereupon he filed the petition in the Court for adding Section 302 of the Indian Penal Code. He also received the inquest report of the dead body, which is proved by him and marked as Ext.-6. Upon completing the investigation he submitted the charge-sheet. In his cross-examination he has stated that the fardbeyan was given at Sadar Hospital, Hazaribagh, before another Police Officer. He did not record the statement of any Doctor or any staff of the hospital. He did not see the deceased or his injury. He has also stated that he had recorded the statement of Sadik Mian, who had informed him that he was not present in the village on the fateful day, and for the conformation of his statement he had gone to Raghunathpur Health Center, and had also interrogated the Doctor there, but he has not made him charge-sheet witness. He has denied the suggestion of making faulty investigation. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused have denied the evidence against them. Three witnesses were examined by the defence. 12. D.W.-1 is Dr. Upendra Narayan Singh, who was a private Doctor at Digambar Jain Hospital, Madhuban. He has stated that on 01.01.1989 he was posted at Addl. P.H.C., Raghunathpur, as a Medical Officer, on which date, Sadik Mian, who was suffering from diarrhea and vomiting, had come for his treatment, and he was treated by him. 12. D.W.-1 is Dr. Upendra Narayan Singh, who was a private Doctor at Digambar Jain Hospital, Madhuban. He has stated that on 01.01.1989 he was posted at Addl. P.H.C., Raghunathpur, as a Medical Officer, on which date, Sadik Mian, who was suffering from diarrhea and vomiting, had come for his treatment, and he was treated by him. He was admitted in the hospital, where he remained for about 2 to 3 days, but he could not say when he was released from hospital. In the cross-examination some documents were shown to him which he admitted, and the same were marked as Exts.-7 & 8. He has also stated in his cross-examination that he did not remember how many persons were treated on that date by him. In the document which was proved by this witnesses as Ext.-7, to be his own handwriting, it finds mentioned that he had treated Sadik Mian on 01.01.1989 and his condition improved on the same day.There was no provision for keeping the patient in the night, and he did not find him in the hospital on 02.01.1989. D.W.-2 Abdul Waha and D.W.-3 Ali Mian have stated that Sadik Mian used to live at village Kendua, which is situated in the District of Dhanbad. 13. On the basis of evidence on record the appellants have been found guilty, convicted and sentenced by the Trial Court below, as aforesaid, whereas the co-accused Mohammad Mian was acquitted by the Trial Court below, in absence of any evidence against him. 14. Learned counsel for the appellant Sadik Mian has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, in as much as, the prosecution case is supported only by P.W.-1 Rongo Yadav and P.W.-2 Mohan Yadav, the father and brother of the deceased as eyewitnesses, who are highly interested witnesses, and there is admitted enmity with them. From the evidence on record it is apparent that after the occurrence, the father and the brother of the deceased kept him at the place of occurrence itself, throughout the night, and only in the morning he was brought to the hospital. At the hospital also, according to the evidence of these witnesses, the treatment could start only after recording the fardbeyan of the deceased. At the hospital also, according to the evidence of these witnesses, the treatment could start only after recording the fardbeyan of the deceased. Had he been treated without any delay, there was all chances of survival of the deceased. It is further submitted by learned counsel that the appellant Sadik Mian was himself admitted in the hospital at Raghunathpur, from prior to the date of occurrence, which fact is supported by D.W.-1 Dr. Upendra Narayan Singh, who had treated him on 01.01.1989 for diarrhea and vomiting, and has stated that this appellant was hospitalised there for 2 to 3 days. Learned counsel accordingly, submitted that the evidence of D.W.-1 Dr. Upendra Narayan Singh, makes the prosecution case doubtful, and the appellant was entitled to the benefits of doubt. 15. Learned counsel has alternatively submitted that this is a case of only one gunshot injury and the injury was not on any vital part of the body. He has also submitted that though it has come in the evidence of P.W.-4 Dr. Subodh Shankar Sahay, who had conducted the post-mortem examination on the dead body of the deceased, that he had also surgically treated the deceased, but there is no recovery of any pellet or bullet from the wound. It is also submitted that apart from the firearm injury, two other injuries were also found, but how those injuries were caused, have not been explained. Learned counsel also submitted that since it is a case of only one firearm injury, and the injury was not on any vital part of the body, it cannot be said that this accused had assaulted the deceased with the intention and knowledge to cause his death, and accordingly, the offence shall come under Section 304 Part II of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. In support of his contention, learned counsel has placed decision of the Hon''ble Supreme Court of India in Jagrup Singh Vs. State of Haryana, reported in (1981) 3 SCC 616 , wherein where, the assault was made by blunt side of the gandasa and in that case, the conviction of the accused was altered from Section 302 of the Indian Penal Code, to one under Section 304 Part II of the Indian Penal Code. Learned counsel has also placed reliance on the decision of the Honble Supreme Court in Mahesh Vs. Learned counsel has also placed reliance on the decision of the Honble Supreme Court in Mahesh Vs. State of Madhya Pradesh, reported in JT 1996 (7) 644 , wherein where, the occurrence had taken place while grazing cattle in the field by the accused, which was objected, upon which there was some altercation and the accused gave one farsa blow on the head of the deceased, which proved fatal. The Honble Supreme Court held that since the assault on the deceased was made during sudden quarrel without any premeditation, the case would fall under Section 304 Part I of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. Placing reliance on these decisions, learned counsel for the appellant Sadik Mian has submitted that since this is also a case of only one firearm injury, the offence cannot be said to be made out under Section 302 of the Indian Penal Code, rather the offence, if any, shall be made out only under Section 304 Part-II of the Indian Penal Code, and the appellant Sadik Mian has been sufficiently punished for the same, as he is in custody throughout. 16. Learned counsels for other appellants have stated that there is no allegation of assault against all the other appellants, and there is nothing on the record to show that the other appellants, who have been convicted for the offence under Sections 302/149 of the Indian Penal Code, were also sharing the same common object, for committing the offence, and accordingly, no offence can be said to be made out against them. 17. Learned counsel for the State, as also learned counsel for the informant, on the other hand, have opposed the prayer, and submitted that from perusal of the evidence of witness P.W.-1 RongoYadav and P.W.-2 Mohan Yadav, it is apparent that all these appellants had come variously armed at the place of occurrence. They were sharing the common object of committing the offence, and in prosecution of the said common object, the accused Sadik Mian fired the gun upon the deceased, causing injury in his abdomen, which ultimately proved fatal to him. Learned counsels submitted that the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-4 Dr. They were sharing the common object of committing the offence, and in prosecution of the said common object, the accused Sadik Mian fired the gun upon the deceased, causing injury in his abdomen, which ultimately proved fatal to him. Learned counsels submitted that the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-4 Dr. Subodh Shankar Sahay, and the post-mortem report proved by him as Ext.-1, and accordingly, the appellants have been rightly convicted and sentenced by the Trial Court below. 18. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that occurrence had taken place in night at about 12:00 A.M., when the deceased informant along with his father and brother were crushing sugarcane in the field. Though it is alleged that all the accused persons came variously armed with the motive to kill the deceased, but there is direct and specific allegation only against the accused Sadik Mian to have assaulted the deceased by gun causing injury in his abdomen, which ultimately proved fatal. The medical evidence of P.W.-4 Dr. Subodh Sankar Sahai, who had conducted post-mortem examination on the dead body and had also treated the deceased earlier, shows that one lacerated wound with charred margin was found on the abdomen, which was abdominal cavity deep. The other two injuries found by the Doctor were surgical stitched wound on the abdomen, also showing surgical interference in the ileum, which shows that firearm injury was deep enough and was sufficient in the ordinary course of nature to cause the death of the deceased, and the firing was made from a close range. The submissions of the learned counsel for the appellant Sadik Mian that this firearm injury was not on any vital part of the body, or that the assault was not made with the intention and knowledge to cause the death of the deceased, are only fit to be rejected. The defence of the appellant Sadik Mian that on the date of occurrence he was admitted in the hospital at Raghunathpur, is also not supported from the evidence of D.W.-1 Dr. Upendra Narayan Singh, as he had treated him on 01.01.1989 only, and from the document admitted by him, i.e., Ext.-7, it is apparent that this appellant was not found in the said hospital on the next day. Upendra Narayan Singh, as he had treated him on 01.01.1989 only, and from the document admitted by him, i.e., Ext.-7, it is apparent that this appellant was not found in the said hospital on the next day. As the occurrence had taken place in the night of 03.01.1989, there is practically no evidence on record to show that the appellant Sadik Mian was admitted in the hospital at Raghunathpur, on the date and time of occurrence. The submission of the learned counsel that had the deceased been given treatment in time, he could have survived, is of no help to the defence. There is direct and specific allegation against the appellant Sadik Mian to have assaulted the deceased by firearm, which proved fatal, and this fact is supported by two eye witnesses, i.e., P.W.-1 RongoYadav and P.W.-2 Mohan Yadav, and also fully corroborated by medical evidence of P.W.-4 Dr. Subodh Sankar Sahai, and the post-mortem report proved by him as Ext.-1. As the occurrence had taken place in the dead night, there was no possibility of any independent witness witnessing the occurrence. Both these eye witnesses are the natural witnesses, who have proved the prosecution case against the appellant Sadik Mian, beyond all reasonable doubts. We do not find any illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, so far as they relate to appellant Sadik Mian. 19. So far as appellants Gulam Rasool, Akbar Mian, Abdul Razzak and Diljan Mian are concerned, it is only alleged that they were accompanying appellant Sadik Mian at the time of occurrence. There is no allegation of any overtact against them. In the FIR also, there is specific allegation against the accused Sadik Mian only, to have told that they had not come to kill the father of the deceased, rather they had to kill the deceased only. We find from the record that there is no cogent evidence on record to show that these appellants were also sharing the common object of committing the offence. In the facts of this case, we are inclined to give the benefits of doubt to these appellants. 20. We find from the record that there is no cogent evidence on record to show that these appellants were also sharing the common object of committing the offence. In the facts of this case, we are inclined to give the benefits of doubt to these appellants. 20. For the forgoing reasons, the impugned Judgment of conviction dated 29.08.2005 and Order of sentence dated 31.08.2005, passed by the learned Additional Sessions Judge, Fast Track Court No.VIII, Hazaribagh, in S.T. No.340 of 1989, so far as they relate to the conviction and sentence of the appellant Sadik Mian, are hereby, affirmed. The appellant Sadik Mian is already in custody, undergoing the sentence. 21. As regards the appellants Gulam Rasool, Akbar Mian, Abdul Razzak and Diljan Mian are concerned, the aforesaid Judgment of conviction and Order of sentence, passed by the Trial Court below, are hereby, set aside. Consequently, the appellants Gulam Rasool, Akbar Mian, Abdul Razzak and Diljan Mian are given the benefits of doubt, and they are acquitted of the charges. The appellants Gulam Rasool, Akbar Mian and Abdul Razzak are on bail, and they are discharged from the liabilities of their respective bail bonds. This Court had issued non-bailable warrant against the appellant Diljan Mian, due to his non appearance in spite of issuance of bailable warrant against him, and he is in custody. The appellant Diljan Mian is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 22. Consequently, Cr. Appeal (DB) No.1152 of 2005 and Cr. Appeal (DB) No.1281of 2005, stand allowed. Cr. Appeal (DB) No.1304 of 2005, is allowed in part, with respect to appellant Gulam Rasool, and is dismissed as regards appellant Sadik Mian. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.