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2019 DIGILAW 487 (JHR)

Harun Mian Alias Jawed v. State Of Jharkhand

2019-02-15

RATNAKER BHENGRA

body2019
JUDGMENT Ratnaker Bhengra, J. - All the appeals are heard together and are being disposed of in one judgment. 2. All the aforesaid three appeals have been directed against the judgment of conviction and order of sentence dated 1st August, 2003 passed by learned Additional District and Sessions Judge, 3rd Dhanbad in S.T. No. 50 of 1995 by which the appellants have been convicted under sections 341/34 and section 326/34 of the IPC and they have been sentenced to undergo Rigorous Imprisonment for one month under section 341 of IPC and Rigorous Imprisonment for five years under section 326 of the IPC. All the Sentences were ordered to run concurrently and period spent in custody during the trial was to be set off. 3. The prosecution case was as per the fardbeyan of the informant, Pradip Kumar Jha P.W. 3 is that on 11.05.1991 he was sitting in the verandah of his resident in Railway Quarter No. 354 A, Aari Colony Hariharpur Police Station, District- Dhanbad in the morning at 8.30 a.m. and reading. Around 9.00 a.m., Harun Mian @ Jawed of Kasai Mohallah called and took the informant towards the house of Mishraji. There three boys were already present from before, one of whom was Choudhari''s son, whom the informant did not know his name. All were from Sihline, Hariharpur Police Station. All four surrounded the informant, and Harun took out a knife and assaulted the informant on the left side of the upper portion of his waist as a result blood oozed out. The informant screamed and the people reached there from the neighbourhood, but by then the accused persons fled. From there itself the informant was taken to the hospital. On the same day, at Railway Hospital, Gomoh, at 11.50 the fardbeyan of the informant was recorded by the officer-incharge Hariharpur Police Station. 4. On the basis of the fardbeyan of the informant, Hariharpur Police Station Case No. 116 of 1991 was lodged. Investigation was conducted and the accused were charge sheeted. Cognizance was taken and the case was committed to the court of Sessions for trial. Charges were framed, to which the accused pleaded not guilty, and claimed to be tried. Trial was held, witnesses examined, and at the conclusion of the trial the accused, appellants herein were convicted and sentenced as aforesaid. Hence, this appeal. 5. Cognizance was taken and the case was committed to the court of Sessions for trial. Charges were framed, to which the accused pleaded not guilty, and claimed to be tried. Trial was held, witnesses examined, and at the conclusion of the trial the accused, appellants herein were convicted and sentenced as aforesaid. Hence, this appeal. 5. P.W. 3 Pradeep Kumar Jha is the informant and the injured victim. He has corroborated his fardbeyan in the essential substance. In para 1 he has deposed that on the date of occurrence the appellant Harun Mian called him at 9 a.m. and took him and on the way they met friends of Harun. Harun said I am coming from behind. When he reached the quarter of Mishra Ji, four persons surrounded him and one Sahid assaulted him with Rod. He further deposed that all four including Paritosh Choudhary, Sahid Mian and another who is in the dock and his friend assaulted him with fists and blows. He does not know the name of the friend. On alarm, his mother came at the place of occurrence from the quarter gate and then she had taken him to the railway hospital. At para 7 he has deposed that he only knew the accused Harun and he did not know the appellant Mustaque Mian, Paritosh Choudhary and Sahid from before. 6. P.W. 1 is Rohni Devi, who is the mother of the informant. She has deposed that the incidents is of round about 8.30 -9.00 a.m, in the morning. She was then standing at her quarter when Harun Mian came and called Pradeep Kumar and took him away a little distance and Harun Mian assaulted Pradeep Kumar with a knife. He was injured on his left waist. She further deposed that there were three other criminals with Harun Mian who fled away after the incident. She deposed that she witnessed the incident with her own eyes. In para 4 she deposed that she had given statement to the police. She had recognized Md. Mustaque, Harun Mian and Paritosh in the dock. 7. P.W. 2 is Jitendra Jha, he is the father of the informant. She deposed that she witnessed the incident with her own eyes. In para 4 she deposed that she had given statement to the police. She had recognized Md. Mustaque, Harun Mian and Paritosh in the dock. 7. P.W. 2 is Jitendra Jha, he is the father of the informant. He has deposed that the incident is of 5.11.1991 and at 7.30 a.m. in the morning he was on duty, when over the public address system, it was announced that Jitendra Jha, should go to the South Railway Hospital where his son is admitted. On reaching the hospital, he saw that his son was lying on the bed and the doctor was treating him. On questioning him, he was informed by him that Paritosh Choudhary assaulted him with knife on the waist. On inquiring from his son, he was informed by him that Harun Mian had called him from the house and taken him where three to four persons were already there. Further that Paritosh Choudhary had assaulted him knife on his waist, due to which he was injured. In para 5, he has admitted that he had not witnessed the incident. 8. P.W. 4 is Rekha Devi, she is the sister of the injured victim or the informant. She had deposed the incident is of around 9 and 1/ 2 years ago and that in the morning at 9 O''clock, Harun had called Pradeep. Therefore Pradeep had got out of the quarter and 5 minutes later, she heard and alarm and when she came out, she saw the informant in a pool of blood. 9. P.W. 5 is the Dr. S.B. Rai and he had treated the injured informant. He deposed that he found injury by sharp weapon on the left waist measuring 10 C.M. x 8 C.M., which was deep and blood was oozing speedily. He has proved the injury report which has been marked as Ext.-2. P.W. 6 is Arun Kumar Mandal, who is an advocate clerk, a formal witness and he has proved the fardbeyan and formal FIR. ARGUMENTS OF THE APPELLANTS 10. Learned counsel for the appellants had argued that there are many inconsistencies of a significant nature in the evidence of the Prosecution witnesses which are greatly at variance with the fardbeyan and the FIR. ARGUMENTS OF THE APPELLANTS 10. Learned counsel for the appellants had argued that there are many inconsistencies of a significant nature in the evidence of the Prosecution witnesses which are greatly at variance with the fardbeyan and the FIR. He has also submitted that even the prosecution witness are inconsistent with each other and do not support and corroborate each other. Counsel for the appellant referring to the fardbeyan points out that in the fardbeyan the main assault is committed by one Harun Mina. However, the prosecution story is drastically changed in the evidence of the informant himself or P.W. 3 or Pradeep Kumar, when he in his evidence deposed that when he had reached the quarter of Mishra Ji then four persons had surrounded him and Sahid had assaulted him with Rod. Counsel for the appellants has thus then submitted that P.W. 3 who is the injured victim and therefore an eye witness and also the informant when he himself has differed his case from his fardbeyan or the FIR and in his evidence then entire case becomes highly doubtful and cannot be relied upon and believed. Therefore, the conviction of the appellants collapse on this score alone and the sentences cannot be upheld also accordingly. 11. Learned counsel for the appellants also points out that from the evidence of P.W. 3, the informant, it is also indicated that in the morning he was running and then he had an arguments with the accused, and mentions the name of Mustaque and Paritosh as being there. Learned counsel for the appellants submits that if we accept this altercation as being some basis for the subsequent assault then the persons named here are Mustaque and one Paritosh and therefore, there is no reason why one Harun Mian would then we assaulting the informant. In his evidence P.W. 3 has deposed that he had informed that Shahid had assaulted with Rod and he had grabbed the rod. He had not told the police that Paritosh had assaulted with knife. Counsel for the appellants then submits that in the fardbeyan the main assailant is Harun Mian, in the evidence of P.W. 3 assaults with rod and P.W. 3 had himself deposed that he had not informed the police that Paritosh had assaulted with knife. He had not told the police that Paritosh had assaulted with knife. Counsel for the appellants then submits that in the fardbeyan the main assailant is Harun Mian, in the evidence of P.W. 3 assaults with rod and P.W. 3 had himself deposed that he had not informed the police that Paritosh had assaulted with knife. So, Paritosh also cannot be attributed for having assaulted with knife as per the evidence of P.W. 3 himself and if at all, Shahid had assaulted then it would have been with a rod and the injury indicated by the doctor is not that of a rod but that of a knife. Shahid was not an accused or tried by the trial court any way neither he is appellant in the instances. Paragraph 13 of the evidence of P.W. 3, counsel for the appellants point out that it is stated that it is wrong that all four accused had surrounded and Harun had assaulted with knife. P.W. has also said that police had written that Harun had assaulted with knife to which the counsel for the appellants says that this is simply wrong. It is further deposed in para 13 that he had told the police that Paritosh had assaulted with knife. It is, therefore, seen that in one instance he says that he did not tell the police that Paritosh had assaulted with knife and then the in other instance in the same deposition further down, he had told the police that Paritosh had assaulted with knife. Counsel for the appellants, therefore, said that there is contradictions in the evidence of the informant himself in his deposition. 12. Learned counsel for the appellants has further points out that P.W. 3 had further deposed that he had said in the fardbeyan that Shahid had assaulted. Counsel for the appellant again hear said that this is also totally at variance with the fardbeyan wherein it is alleged that Harun Mian had assaulted with the knife. Counsel for the appellants, therefore, says that due to the aforesaid inconsistencies of the chief witness, who is the injured witness as well as the informant, the entire case of the prosecution cannot be belied and therefore the allegation and the conviction of the appellants cannot be upheld and neither the sentences sustained. 13. Counsel for the appellants, therefore, says that due to the aforesaid inconsistencies of the chief witness, who is the injured witness as well as the informant, the entire case of the prosecution cannot be belied and therefore the allegation and the conviction of the appellants cannot be upheld and neither the sentences sustained. 13. Learned counsel for the appellants has then referred to the evidence of P.W. 1 Rohni Devi, who is the mother of the injured and pointed out that she has initially deposed that Harun had assaulted Pradeep with a knife on his left waist. That three other accused were there who had also fled away. When her son had fallen down due to injury then she had gone to the spot and taken her son to the railway hospital where he was treated. Subsequently, she had deposed that she had not seen the accused assaulting his son but only seen the accused fleeing after the assault. Counsel for the appellants therefore says that if she has not seen the assault on her son taking place then how can she with certainty accused Harun Mian of being the assailants with the knife on her son. Therefore, she is in no position to accuse the appellant Harun Mian on inflicting the stab injury. Moreover, she has seen all the accused or the appellants fleeing, therefore she is not in a position to say who had assaulted her son. Counsel for the appellants has then taken us to the evidence of P.W. 2 who is Jitendra Jha, the father of the informant and straightway argued that his evidence is not very significant because he is a hearsay witness and he was not at the place of occurrence when the incident occurred rather he was on duty. Counsel for the appellants however, points out that from the evidence of P.W. 2, however, significant variation is there from the fardbeyan, to the effect that when he had asked his son in the hospital regarding the incident, then his son had informed him that Paritosh had assaulted him with knife on the waist. Counsel for the appellants, therefore, says this is in variation with the fardbeyan wherein the informant has himself submitted that the assault by knife was made by one Harun. Counsel for the appellants, therefore, says this is in variation with the fardbeyan wherein the informant has himself submitted that the assault by knife was made by one Harun. Counsel, therefore, again says that even from the evidence of father, there is variation from the fardbeyan and this variation is due to what has been conveyed by the injured victim as to who the main assailant was. As per his own fardbeyan he has named Harun Mian as having stabbed him but when he is in hospital and his father asked him as to who did the incident then he informed the father that Paritosh had assaulted on his waist. Counsel therefore says that the father is only conveying what has been told to him by his own son and here he takes the name of Paritosh as having assaulted with the knife and this is at variance with the informants'' own fardbeyan and therefore this further strengthen the evidence of the main witness the injured is simply not reliable and due to his unreliability he has also borne into the question the evidence of the other witnesses. Counsel further points out from the evidnece of the father of the injured or P.W. Jitendra Jha that he has also deposed that he did not tell the police that Harun, Paritosh and Mustaque had together assaulted his son. Counsel for the appellant has then submitted as far as the evidence of the sister P.W. 4 Rekha Devi is concerned she is simply not a witness to the incident because on alarm, she has come out and then she had seen bleeding but she has not said anything about as to who is assailants were. Counsel has also pointed out from the deposition of the sister in para 6 that even after the incident she had deposed that Harun had met her mother and father. Counsel for the appellants thus says that this conduct does not seem to be the conduct of an accused and he would not be going to meet the father and mother of the injured victim if he had at all assaulted the injured victim. In fact, this witness has gone to the extent of saying that it is so the visiting of Harun is wrong. In fact, this witness has gone to the extent of saying that it is so the visiting of Harun is wrong. Learned counsel for the appellants has also argued that in this instance when the main witness who is the injured victim and the informant himself become unreliable witness and giving evidence which is at variance with the prosecution story then it was most essential that the I.O. should have been examined but he has not been done so and this has greatly prejudice the appellants case. The I.O. need to be examined in this instance because then he would have been able to make out as to who the main assailants were but this lack of examination of the I.O. has not allowed the determination of the main assailants or any of the assailants being made and therefore the benefit of doubts should be extended to the appellants. 14. Mr. Ravi Kumar Singh had argued that the conviction is on the basis of 34 IPC, however, nowhere has it come that Md. Mustaque had assaulted anyone. The name of Shahid has come that he may have assaulted with rod. Since this appellant is nowhere attributed any action of assault, therefore he cannot be convicted of any offence and neither so with the add and assistance of section 34 of the IPC. It has been argued that no common intention is made out of giving knife assault by any of the accused. Counsel also points out that when the evidence of injured victim is itself is doubtful as well as his fardbeyan then how section 34 IPC will come into play. He has also doubted. Counsel for the appellants also argues that court has also not come to the conclusion as to who specifically assaulted. Counsel for the appellants also argued that there are two weapon of assault indicated one is a knife and another is a rod and both the weapons are used by different persons and the use of these weapons by the persons using them have been varied by the informant himself from the fardbeyan or his own evidence and neither have they been recovered or exhibited. Therefore, on that basis, it would not be possible to attribute any blame to any person. ARGUMENTS OF THE APP 15. Learned counsel for the appellant Mr. Therefore, on that basis, it would not be possible to attribute any blame to any person. ARGUMENTS OF THE APP 15. Learned counsel for the appellant Mr. Rajneesh has however has argued that the conviction against all the appellants are sustained including the sentences because as the story has been laid out by the prosecution it was Harun Mian who has come and called the alleged victim or called the victim out of his house and then all the friends had got together and then he was assaulted by all four and also assaulted by knife. Counsel says that the knife injury is consistently said by the prosecution witnesses and it is also proved by the evidence of the doctor or P. W.5 who has said so in his evidence and in his injury report regarding the nature of injury. Counsel, therefore, says that the main assaults are either attributed to Harun or to Paritosh and since there is injury of a knife wound, therefore it is not believable that the injured victim will make a false story and the assault was collectively made and there is reference to assault by rod also as well as a knife and therefore both weapons if used in a particular manner can become dangerous weapon and therefore the conviction under section 326 of the IPC and section 341 of the IPC is fully justified, as well as the sentences under both the sections. The counsel has also relied on the judgment of the Apex Court Suresh & others vs. State of U.P. reported in , (2001) 3 SCC 673 on the point of section 34 of the IPC. CONCLISION AND FINDINGS 16. It is seen from the prosecution story as has been laid out in the fardbeyan that the informant who is injured victim was at his home and that one Harun Mian had called him and taken him away and then when they had reached near the house of Mishra Ji then other friends of Harun who also met or three boys were already present thereafter all four surrounded the informant and Harun took out a knife and assaulted the informant on the upper portion of his waist on the left side. Since, however, from the evidence of the informant, himself varied and it is informed that Harun had called him from his own but it is deposed in the evidence of P.W. 3 that Harun then said that I am coming from behind, which would mean that Harun had been left behind, therefore, there is some distance and time again to be covered. From the evidence of P.W. 3, it is then revealed that when he reached Mishra Ji quarter then four persons surrounded him and one Shahid assaulted him with rod. Therefore, it is seen two crucial difference or variation is that in the fardbeyan it is not stated that Harun had said that you go ahead and that I will come from behind, however, it is indicated so in the evidence of P.W. 3. If the evidence is accepted of P.W. 3 then it would mean that Harun had been left behind and he was not amongst the four persons who were near Mishra Ji quarter as per his evidence. Therefore, Harun cannot be said to be one of the assailants and definitely not the assailant who had assaulted with the knife. In any way P.W. 3, the injured in his own evidence says that what initially one Shahid assaulted him with rod. Now this Shahid has not been mentioned in the fardbeyan and neither has he been indicated as having assaulted with rod. Therefore Shahid seems to be a new introduction and the assault on him by rod also seems to be a new introduction and the injuries by the doctor nowhere shows or indicates the assault by a rod, therefore, the evidence of P.W. 3 on this score is at variance or inconsistent with the evidence of the doctor. Thereafter, he has said that all four assaulted him with fists including Paritosh Choudhary and Shahid Mian and another. From his evidence, initially it is not indicated that Paritosh had assaulted him with knife. Any way there is already significant variation from the fardbeyan as to how the incident occurred and as to who main assailants were. Thereafter, he has said that after the four persons assaulted him with fists then his mother had come to the place of occurrence on alarm. Therefore, from his evidence before his mother comes to the place of occurrence on alarm, there is no reference to any stabbing being made by anyone. Thereafter, he has said that after the four persons assaulted him with fists then his mother had come to the place of occurrence on alarm. Therefore, from his evidence before his mother comes to the place of occurrence on alarm, there is no reference to any stabbing being made by anyone. 17. When the evidence of P.W. 2 Jitendra Jha, who is father of the victim is then seen, it is seen that he is a hearsay witness and therefore whatever information he got was from the injured himself. Therefore when inquired from his son regarding the incidence then he was informed by his son that Paritosh Choudhary had assaulted him with knife. This is at variance or different with the FIR where it is said that Harun had stabbed. It is also at variance with the evidence of the informant himself as P.W. 3 where P.W. 3 had said that Shahid has assaulted with the rod and thereafter four of the accused had assaulted with fists. Therefore, there is much inconsistencies and variations in the version of the fardbeyan in the evidence of the injured persons himself and in the evidence of P.W. 2 who is the father of the victim. From the evidence of the P.W. 1 who is the mother it is seen that she has initially deposed that she had seen Harun Mian assaulting but however in the conclusion of the evidence she has deposed that she had not seen the accused assaulting her son only seen the accused fleeing away. Therefore, she is in no position to say who any of the assailants was, but it is apparent that she had developed her evidence so as to initially blame Harun as being the assailant with the knife. The evidence of the P.W. 4 is not very important because she is a hearsay witness and she has not attributed blame to anyone. However, it is significant to the extent that she says that even two days after the incident Harun Mian had come and met the father and mother. This is definitely not the behaviour of an accused criminal. 18. However, it is significant to the extent that she says that even two days after the incident Harun Mian had come and met the father and mother. This is definitely not the behaviour of an accused criminal. 18. Therefore, having gone through the arguments of all the counsels, gone through the records of the case and in the facts and circumstances and noting the above many inconsistencies and the major inconsistencies of the injured witness himself as to who the main assailant was, and also as to the developing of the evidence by the mother and also the evidence of the sisters of the injured who says that Harun Mian had come and visited two days thereafter, on all this basis, I am not inclined to sustain the conviction and sentences of any of the appellants. Enough inconsistencies have been raised to create much doubt in the prosecution story and therefore, the convictions of the appellants as well as the corresponding sentences cannot be sustained. Accordingly, the appeals of all the appellants in Cr. Appeal (SJ) No. 1082 of 2003, Cr. A (SJ) No. 1120 of 2003 and Cr. A (SJ) No. 1124 of 2003 are allowed. All the appellant Harun Mian alias Jawed (appellant in Cr. A. (SJ) No. 1082 of 2003, Paritosh Choudhary (appellant in Cr. A (SJ) No. 1120 of 2003 and Md. Mustaque @ Mustaque Mian (appellant in Cr. A (SJ) No. 1124 of 2003 are on bail. They are set free of the liabilities of bail bonds. Accordingly, all the three appeals are allowed.