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2022 DIGILAW 149 (JHR)

Md. Sahabuddin v. State of Jharkhand

2022-02-09

NAVNEET KUMAR

body2022
JUDGMENT : This appeal has been preferred against the Judgment of Conviction and order of sentence dated 20.10.2003 passed by the Additional Sessions Judge, FTC-I, Chatra, in S.T. No.39 of 1990, arising out of Simaria P.S. Case No.80 of 1989, whereby and where under the accused appellants namely Md. Sahabuddin, Muslim Mian and Makshud Mian were convicted for the offence punishable under Sections 147 and 323 of the IPC and they were sentenced to undergo R.I. for two years each under Sections 147 of the IPC and also to undergo R.I. for one year each under Section 323 of the IPC and all the sentences were ordered to run concurrently. 2. Briefly stating the prosecution story, which arose in the wake of fardbeyan of one Puran Sao, PW-1, whose statement was recorded by O/C A.K.Tiwari of Simaria Police station in the district of Hazaribagh on 02.09.1989 at Referral Hospital, Simaria at 20.00 hours is as under: The informant PW-1 Puran Sao stated in the said fardbeyan that he had planted the paddy crops in the land of on Janardhan Singh which was taken by him at bataia (Settlement) and the said land was full of water. At about 5 pm, the accused Mohiddin Mian (passed away during the pendency of this appeal and his name has been deleted vide order dated 9th December 2021) came there as his land was adjacent to the said land. It has further been stated in the said fardbeyan by the informant that the land of Mohiddin was down from the land of the informant and the said deceased appellant Mohiddin cut away the agricultural field to open the flow of water stored in the land of the informant, upon which, the informant opposed, but the deceased appellant Mohiddin did not agree and in the meantime, the said Mohiddin assaulted the informant Puran Sao by lathi. Thereafter the informant fled away and came at the place of Janardhan Singh and he narrated the entire occurrence to Janardhan Singh and thereafter the informant came at his house with Shivnarayan Singh and he narrated the entire occurrence to his brother Fagu Sao PW-7, Uncle Kheman Sao PW-2 and neighbour Arjun Sao PW-6. Thereafter the informant fled away and came at the place of Janardhan Singh and he narrated the entire occurrence to Janardhan Singh and thereafter the informant came at his house with Shivnarayan Singh and he narrated the entire occurrence to his brother Fagu Sao PW-7, Uncle Kheman Sao PW-2 and neighbour Arjun Sao PW-6. The informant further alleged that all of them went to the house of Mohiddin Mian and while his uncle Kheman Sao was saying about the occurrence to Abdul Mian, in the meantime, Mohiddin armed with lathi, Sahabuddin Mian (Appellant No.1) holding a piece of wood, Makshud appellant No.3 armed with Sakhua Kachra (a kind of hard wood) and Muslim Mian with empty hand came there and thereafter some altercation took place between the uncles of the informant and the accused appellant Mohiddin Mian. It has further been stated that Johara Bibi (who has been acquitted by the learned court below) wife of Abdul Mian came with lathi and ordered to assault, thereupon Mohiddin Mian went to house and came back with a big knife and attacked on Kheman Sao PW-2. It has further been alleged that the deceased appellant Mohiddin and his three brothers (the appellants) and his mother assaulted Kheman Sao, Puran Sao and Fagu Sao by dagger and lathi, by which Kheman Sao and Fagu Sao fell down on the ground and on raising hulla, several villagers came there and thereafter the accused appellants fled away. It has further been alleged that all the injured persons were brought to Simaria Hospital on a truck of Mukhiaji. 3. On the basis of the aforesaid fardbeyan (Ext- 3), a formal FIR was drawn vide Simaria P.S. Case No.80 of 1989 under Sections 147, 148, 149, 323, 324 and 307 of IPC. Thereafter the investigation of the case commenced, the charge-sheet was submitted and the case was committed to the Court of Sessions. Learned Trial Court framed the charges against five accused persons for the offences punishable under Sections 148, 324, 147, 323 and 307 of IPC and after the trial one co-accused Johara Bibi was acquitted and these three appellants have been convicted for the offence punishable under Sections 147 and 323 of IPC and the deceased appellant Mohiddin Mian was convicted for the offence punishable under Section 148 and 324 of IPC. It appears from the record that the deceased Mohiddin Mian was the appellant No.1 and his name has been deleted vide order dated 09.12.2021 and the rest of the three appellants above named defended their case in this appeal. 4. Heard Ramit Satendar, learned defence counsel appearing on behalf of the appellants and Mr. V.N. Jha, APP appearing on behalf of the State. 5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel appearing on behalf of the appellants submitted that the learned trial court has committed the grave error in convicting the appellants, as it failed to appreciate the evidence in the right perspective. It has been pointed out that altogether nine witnesses have been examined by the learned court below and PWs -1, 2 & 7 were most interested witnesses being the relatives of each other and PW-3 has been declared hostile, whereas PWs-4 and 6 are hearsay witnesses and PW-5 is tendered witness. It has further been stated that PW -8 is the formal witness and PW-9 who is the doctor, although he has deposed to examine the injured PWs 1, 2 & 7, but did not prove the injury report and as such his evidence is formal in nature and the injury could not be proved in the eyes of law, but despite all these facts, the learned court below believing the evidence of only the interested witnesses, convicted the accused appellants. It has further been argued that the I.O in this case has not been examined and therefore the counter case, which was instituted on behalf of the appellants, which is an admitted fact could not be appreciated in the right perspective, as a matter of fact the injured persons namely PW-1 PW-2 and PW-7 were aggressive and they had assaulted the appellants. 6. It has further been contended that since the I.O. has not been examined and therefore the place of occurrence is also not proved and neither the blood stained any cloths have been found and seized nor blood stained earth soil has been recovered and brought on record as purported in the FIR that the blood started oozing from the injured persons and PW-2 Kheman Sao was badly injured and he was referred to Hazaribagh Hospital. Further it has also been pointed out that there has not been unlawful assembly within the meaning of Section 147 of IPC, because one of the accused has been acquitted and only four persons were convicted and therefore the conviction under Section 147 IPC is bad in law, because in the FIR itself, it has been stated that there was no other person other than the five accused, out of whom one of them namely Johara Bibi has been acquitted as it has been proved that none of the witnesses took the name of Johara Bibi, although it has been disclosed in the FIR, which has not been held true during the course of trial by any one of the witnesses. Further it has also been stated that the trial court did not consider the admitted fact of the counter case in order to appreciate the deposition of the witnesses in the right perspective and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set-aside. 7. On the other hand, learned counsel appearing on behalf of the Respondent-State Mr. V.N. Jha opposed the contention raised on behalf of the appellants and submitted that the learned trial court has rightly appreciated the evidences, particularly, the injured persons PWs-1, 2 & 7, whose depositions are consistent and uniform and therefore even in the absence of the examination of the doctor and the I.O., the offence under Section 323 of IPC is proved and the non-examination of the I.O. and the injury report did not cause prejudice to the accused appellants under the circumstances of this case as the depositions of PWs, 1, 2 & 7 have consistently supported the case of the prosecution and therefore this appeal is fit to be dismissed being devoid of merit. 8. Having heard learned counsel for the parties and perused the record of the case including the lower court record; it is found that it is admitted case of the prosecution that there had been case and counter case between the parties. 8. Having heard learned counsel for the parties and perused the record of the case including the lower court record; it is found that it is admitted case of the prosecution that there had been case and counter case between the parties. Form the FIR itself, it appears that after the first incident of altercation between the deceased appellant Mohiddin and the informant Puran Sao at the agricultural filed of one Janardhan Singh, the informant along with other witnesses, who were his relatives had gone to the house of the deceased appellant Mohiddin, where the alleged occurrence of mar-pit(quarrel) had taken place and therefore the possibility of aggressiveness by the informant’s people in the light of the admitted counter case, cannot be ruled out. 9. PW-1 Puran Sao, who is the informant and the injured person had specifically stated about the deceased appellant Mohiddin and thereafter in a sweeping way, he had taken the name of Muslim and Makshood Mian armed with lathi and Sahabuddin armed with dagger, but in absence of injury report, as to whether the injuries were inflicted by daggers or lathi or sword could not get corroborated, although, the Doctor Ram Lakhan Razak PW-9 has been examined on behalf of the prosecution, but he simply stated that he had medically examined the injured persons, but he could bring on record the injury report and he had examined Fagu Sao PW-7, Kheman Sao PW-2 and Puran Sao PW-1 and therefore the injuries as alleged in the FIR is not corroborated. PW-1 Puran Sao in para 13 had categorically stated that he had been in the jail in the counter case. PW-1 Puran Sao in para 13 had categorically stated that he had been in the jail in the counter case. The I.O. in this case has not been examined and therefore the weapons, which are alleged to have been used in the purported offence causing injuries said to have been inflicted by the appellants, also could not be seized, nor it was brought on record as a material exhibit and therefore to that extent that the assault alleged to have been caused by sword, knife or lathi could not get corroborated and substantiated in absence of the injury report and non-examination of the I.O. Further it is stated that there were two places of quarrel one at the agricultural field and another at the house of deceased Mohiddin but these places of alleged mar-pit could not be substantiated in absence of the examination of the I.O. But the fact remains to take into consideration that in alleged assault, the three persons namely Puran Sao-PW-1, Kheman Sao (PW-2) and Fagu Sao PW-7 have been injured, as deposed by Doctor PW - 9 also. 10. PW-2 Kheman Sao has been examined, who has also stated that Mohidduin had assaulted him by sword, but no specific assault, has been attributed to any one of these three appellants in his entire depositions. 11. PW-3 Bhagwat Singh has been declared hostile as he has not supported the case of the persecution. 12. PW-4 Jagdish Paswan did not utter a single world against these three appellants and he had stated about the fighting between Puran Sao PW-1 and the deceased appellant Mohiddin and therefore this witness also did not support the case of the prosecution with respect to the specific involvement of Sahabuddin, Muslim and Makshood, who are the appellants in this appeal. 13. PW-5 Habib Mian has been tendered by the prosecution for the reasons best known to them. 14. PW-6 Arjun Sao is said to be hearsay witness, who was the nephew of PW-2 Kheman Sao and cousin of PW-1 Puran Sao-informant as he has stated in his examination-in-chief although he has been projected as eye witness in the FIR. 13. PW-5 Habib Mian has been tendered by the prosecution for the reasons best known to them. 14. PW-6 Arjun Sao is said to be hearsay witness, who was the nephew of PW-2 Kheman Sao and cousin of PW-1 Puran Sao-informant as he has stated in his examination-in-chief although he has been projected as eye witness in the FIR. No specific assault by any one of the weapons has been deposed by the witnesses in examination in chief against any one of the appellants and just a sweeping deposition has been given that these appellants including Sahabuddin, Muslim and Makshud along with Mohiddin had assaulted him and therefore the case of the prosecution that the injured persons were assaulted by lathi, sword or knife remains unsubstantiated by this witness also, who is said to be the eye witness of the assault but negated in his examination-in-chief that he was eye witness as he stated that he heard about the incident. In para-2 of the cross-examination, this witness has stated that there was a counter case also against them. In para 17 and 18, this witness has stated that he was not examined before the police and he had taken the bail in counter case and since I.O. in this case has not been examined and therefore the truthfulness of this witness as to whether he was examined by the police during course of investigation remains unsubstantiated and veracity of this witness is doubtful. 15. PW-7 Fagu Sao is said to be the another injured witness and he also did not specifically depose in his examination-in-chief about the specific assault either by knife, sword or lathi by any one of these appellants namely Sahabuddin, Muslim and Makshud and therefore the case of the prosecution has not been substantiated specifically and pointedly against these appellants and there is general deposition that they have assaulted. This witness in para 8 of the cross-examination accepted about the counter case. 16. PW-8 is the police personnel, who had formally proved the formal FIR (Ext-2) and the fardbeyan, which has been marked as Ext.-3. In the cross-examination he candidly stated that he had no knowledge about this case. 17. PW- 9 is the doctor Ram Lakhan Razak, who had examined the three injured persons namely Puran Sao, Fagu Sao and Kheman Sao, but he could not prove the injury report due to its nonavailability. 18. In the cross-examination he candidly stated that he had no knowledge about this case. 17. PW- 9 is the doctor Ram Lakhan Razak, who had examined the three injured persons namely Puran Sao, Fagu Sao and Kheman Sao, but he could not prove the injury report due to its nonavailability. 18. On the other hand, two defence witnesses have been examined namely DW-1 Md. Suleman and DW-2 Md. Azim Mian on behalf of the appellants in order to counter that there was a counter case instituted by them, in which, the informant’s people including Puran Sao and others were accused who had assaulted these appellants. The learned defence counsel has pointed out that from the FIR itself it is found that the informant Puran Sao along with other witnesses had gone to the place of Mohiddin (deceased appellant) suggesting that they were aggressive and thereby they had rather assaulted the appellant’s people, is corroborated with the counter case instituted by the appellants against the prosecution parties which have been admitted by them when examined on behalf of the prosecution as discussed elaborately in the forgoing paragraphs. 19. Having taken into consideration the aforesaid appraisal of the testimonies of the witnesses, it is well founded that the learned trial court has committed error in holding the conviction of the accused appellants for the offence punishable under Section 147 of IPC, although the offence punishable under Section 323 against the appellants are substantiated and learned trial court has rightly appreciated the evidences and convicted the accused appellants for the offence punishable under Section 323 of IPC. 20. Accordingly the Judgment of conviction and order of sentence passed by the learned court below is set-aside for the offence punishable under Section 147 of IPC and this court upholds their guilt for the offence punishable under Section 323 of IPC and accordingly the conviction of the appellants for the offence punishable under Section 323 of the IPC is sustained. 21. Learned defence counsel has pointed out on the point of sentence that the appellant No.1 Md. Sahabuddin is about 70 years old, appellant No.2 Muslim is about 90 years old and appellant No.3 Makshud is about 75 years old and therefore, a lenient view may be taken in awarding the sentence for the offence punishable under Section 323 of IPC. 22. Sahabuddin is about 70 years old, appellant No.2 Muslim is about 90 years old and appellant No.3 Makshud is about 75 years old and therefore, a lenient view may be taken in awarding the sentence for the offence punishable under Section 323 of IPC. 22. This Court finds force in the contentions raised on behalf of the defence counsel on the point of sentence. It is found that the incident is of the year 1989, about more than 30 years ago and all the appellants have been suffering the trauma of criminal proceedings for a long period of time and there is nothing on the record to show about their criminal history and further they have also become very old and in this view of the matter, it is just and fair not to send the appellants again in jail and instead of awarding the sentence of imprisonment, it is found reasonable, to award the sentence of fine by way of compensation upon all these appellants collectively in a composite manner in order to pay the injured informant Puran Sao. 23. Consequently all the accused appellants are awarded sentence of fine to a sum of Rs.3,000/- (three thousand rupees) collectively in a composite manner for the offence punishable under Section 323 of IPC by way of compensation in order to make payment to the injured informant Puran Sao and in case of default of payment of fine, the appellants will undergo Simple Imprisonment for six months by each of the appellant. 24. Since all the appellants above named in this appeal are on bail, they are discharged from the liabilities of the bail bond and they are directed to deposit the amount within three months from the date of receipt of this order in the concerned court below and when the said amount is deposited in the Govt. Exchequer through the Nazarat Civil Court, Chatra, the learned court below shall take all necessary steps to ensure the presence of the informant Puran Sao and to disburse the payment so deposited by the appellants. In case the said fine amount is not deposited within the stipulated period of time as above, the concerned court below shall ensure that the appellants serve the sentence as awarded by this court in case of default of fine. 25. In case the said fine amount is not deposited within the stipulated period of time as above, the concerned court below shall ensure that the appellants serve the sentence as awarded by this court in case of default of fine. 25. Further if the said informant Puran Sao is not found or traceable, then either to his kith and kin or to any of his close relatives as the concerned court below may deem fit and proper would disburse the compensation amount accordingly so deposited. 26. In the result, this appeal is party allowed as above. 27. Let the Lower Court Record be sent back forthwith to the concerned court below forthwith for its compliance.