Aslam Mian and Others vs The State of Bihar

S.M.M. Alam, J.—This appeal has been preferred against the judgment dated 15.5.1992 and the order dated 19.5.1992 passed in Sessions Trial No. 151 of 1990 by Sri Chiranji Singh, 4th Additional Sessions Judge, Saran, whereby he has been pleased to convict appellants Rustam Mian, Ainul Mian, Aslam Mian and Lukman Mian under sections 148 and 324 of the Indian Penal Code and appellant Zahir Mian under sections 147 & 323 of the Indian Penal Code. Appellant Rustam Mian was sentenced to undergo R.1. for two years and to pay fine of rupees one thousand and in default thereof to undergo further R.1. for three months for the offence u/s 324 of the Indian Penal Code. Accused Aslam Mian, Ainul Mian and Lukman Mian were sentenced to undergo R.1. for one year for the offence punishable u/s 324 of the Indian Penal Code. Accused Aslam Mian, Ainul Mian, Lukman Mian and Rustam Mian were sentenced to undergo R.1. for a period of one year for the offence u/s 148 of the Indian Penal Code. Accused Zahir Mian was sentenced to undergo R.1. for a period of one year for the offence u/s 147 of the Indian Penal Code and R.1. for six months u/s 323 of the Indian Penal Code. The learned Additional Sessions Judge further ordered that all the sentences shall run concurrently. He has further ordered that out of the alleged fine to be realised from the accused rupees eight hundred will be paid to the first informant Husnain Khan by way of compensation. The brief facts of the case is as follows:-

On 1.11.89 at about 16.45 hrs. A.S.I. Abdul Qayyum Khan of Masrak P.S. recorded the fard-e-bayan of Husnain Khan (P.W. 4), resident of village Sikte Bhikham P.S. Masrak District- Saran at Masrak Hospital, wherein, the said Husnain Khan (P.W. 4) stated that on the same day at about 12.30 p.m. his co-villager Sale Imam Khan and Zahir Mian were quarreling among themselves. The bone of contention was a Sisam tree. On hearing halla, the informant came out of his house and went to the place of occurrence ''or pacifying both the parties. When the informant reached the P.O., he saw Aslam Mian, Ainul Mian, Lukman Mian, Rustam Mian and Zahir Mian standing there with lathi, farsa, bhala etc. On reaching there, the informant advised them not to quarrel, whereupon, appellant Zahir Mian gave order to kill him. On the order of Zahir Mian, Rustam Mian attacked him with Farsa. The informant tried to ward-off the attack and in process he received farsa injury on his left elbow. Then Ainul Mian, who was also armed with farsa inflicted farsa blow to the informant on his left hand''s wrist. Then, Rustam Mian again attacked him with farsa causing farsa injury on his head. Being injured, the informant fell down and then Lukman Mian attacked him with bhala causing injury on his right palm and, thereafter, Aslam Mian gave one farsa blow to the informant on his head. It is further said that appellant Zahir Mian assaulted the informant with lathi on his back and waist. Seeing the occurrence, Noor Hasan Khan (P.W. 3) came to rescue the informant, whereupon, co-accused Ainul Mian assaulted him with farsa causing injury on his head. During the occurrence, several persons including Taslim Khan and Jahangir Khan reached the P.O. and witnessed the occurrence and saved the informant. It is further stated that after the occurrence the informant was taken to hospital for treatment.

On the basis of the above fard-e-bayan of the informant, Masrak P.S. case No. 165 of 1989 dated 1.11.89 under sections 147, 148, 149, 323, 324, 307 of the Indian Penal Code was instituted and the investigation of the case was handed over to A.S.I. Abdul Qayyum Khan, who investigated the case and submitted chargesheet against the appellants.

On submission of the chargesheet cognizance was taken and the case was committed to the Court of Sessions and thereafter the appellants were put on trial and by the impugned judgment and order the appellants were convicted and sentenced to undergo the imprisonment as stated above.

During the trial, the prosecution examined altogether six witnesses, namely, P.W. 1 Taslim Khan, P.W. 2 Jahangir Khan, P.W. 3 Noor Hasan Khan, P.W. 4 Hasnain Khan, P.W. 5 Dr. Janak Pandey and P.W. 6 A.S.I. Abdul Qayyum Khan. Out of the above said witnesses, P.W. 4 Husnain Khan is the informant of this case, P.W. 5 is the Medical Officer, who had examined the injury of Husnain Khan and Noor Hasan Khan. P.W. 6 is the I.O. who had investigated the case and submitted chargesheet. No witness has been examined on behalf of the defence.

From the perusal of the judgment of the learned trial court it appears that the trial court has placed reliance upon the evidence of P.W. 1, 2, 3 and 4 and on the basis of their evidence coupled with the evidence of P.W. 5 Dr. Janak Pandey, the trial court has held that the prosecution has been able to prove that on the alleged date of occurrence the accused persons after forming an unlawful assembly had assaulted P.W. 4 Husnain Khan and P.W. 3 Noor Hasan Khan with sharp cutting weapon and hard blunt substance respectively and, accordingly, the trial court has held the appellant Aslam Mian, Ainul Mian, Lukman Mian and Rustam Mian guilty under sections 148 and 324 of the Indian Penal Code and Zahir Mian under sections 147 and 323 of the Indian Penal Code.

Let me see whether the finding of the learned trial court is correct or not or whether it requires any interference.

The argument of the learned counsel for the appellants is that the judgment and the order of conviction and sentence passed against the appellants is bad in law as well as on facts on the following grounds:-

(i) That the prosecution has failed to prove the genesis of the occurrence.

(ii) That the prosecution has also failed to prove the manner of the occurrence and there is absolutely no evidence on record that there was any unlawful assembly at the time of alleged occurrence.

(iii) That the trial court has not properly appreciated the evidence available on the record as from the evidence it is established beyond doubt that the prosecution side were trespassers as, admittedly, the land on which Sisam tree was standing and which was the bone of contention belonged to the appellants.

On the basis of the above arguments, the learned counsel for the appellants has sought acquittal of the appellants.

From the perusal of the fard-ebayan of P.W. 4, Husnain Khan, it appears that the prosecution case was that on 1.11.89 at about 12.30 hrs., a quarrel took place between Sale Imam Khan and appellant Zahir Mian with regard to cutting of a Sisam tree. The informant Husnain Khan hearing halla went near the Sisam tree and wanted to intervene between Sale Imam Khan and appellant Zahir Mian which was not liked by appellant Zahir Mian and he gave order to other appellants to assault the informant Husnain Khan, whereupon, appellant Rustam Mian attacked Husnain Khan with farsa aiming at his neck. The informant tried to ward-off the attack and in the process sustained injury on his left elbow. Thereafter, appellant Ainul Mian attacked the informant with farsa causing injury on his left hand''s wrist. Rustam again attacked him with farsa causing injury on the head of the informant. Being injured, the informant fell down and then Lukman Mian inflicted Bhala blow to the informant causing injury on his left palm and then Aslam attacked him with farsa causing injury on his head and thereafter Zahir Mian assaulted him with lathl causing injury on his back and waist. Noor Hasan Khan came to save the informant and he was assaulted by Ainul Mian with farsa causing injury on his head. The prosecution version finds corroboration from the evidence of P.W. 1 Taslim Khan, P.W. 3 Noor Hasan Khan and P.W. 4 Husnain Khan. From the perusal of judgment of the trial court, it appears that the learned trial court has found the evidence of P.Ws. 1, 3 and 4 on the point of occurrence very reliable and, so, on the basis of their testimony the trial court has convicted the appellants. But the submission of the learned counsel for the appellants is that P.Ws. 1, 3 and 4 cannot be held to be truthful witnesses if their evidence is compared with the evidence of P.W. 5 Dr. Janak Pandey which completely falsify the manner of occurrence.

Let me see whether the manner of occurrence as disclosed by the witnesses in their evidence finds corroboration from the medical evidence available on the record or not.

According to the evidence of P.W. 5 Dr. Janak Pandey, he has found the following injuries on the person of Husnain Khan (P.W. 4):-

(i) incised wound on left arm, and forearm, measuring 9" x 2" x bone deep with fracture of radius bone.

(ii) Incised wound on left hand, on dorsal 1" x 1/2" x 1/2".

(iii) Lacerated wound on forehead, left side near mid-line 1-1/2" X 1/2" x scalp deep.

(iv) Swelling with bruise, (red) on the back, upper part 3" x 1" and on the waist of the size 4" X 1".

He has opined that injury No. (i) and (ii) on the person of Husnain Khan was caused by sharp cutting weapon like farsa, whereas, injury No. (iii) and (iv) were caused by hard and blunt substance.

Thus, the evidence of Medical Officer (P.W. 5) and his report (Ext. 2) shows that only two injuries of sharp cutting weapon were found on the person of Husnain Khan and the rest two injuries were of hard and blunt substance, whereas, according to the prosecution case and according to the evidence of P.W. 1, 3 and 4 (P.W. 2 is not witness of actual assault) there were altogether five sharp cutting injuries on the person of Husnain Khan. Thus, the medical report (Exhibit-2) does not support the prosecution case as well as the evidence of PWs. 1, 3 and 4.

According to the evidence of P.Ws. 1, 3 and 4, appellant Rustam Mian attacked Husnain Khan with farsa causing injury on his left elbow, appellant Ainul attacked, him with farsa causing injury on his left wrist and then Rustam Mian attacked him with farsa causing injury on his head. Thereafter, Lukman attacked him with Bhala causing injury on his right palm and then Aslam gave Farsa blow to Husnain on his head. But the evidence of Medical Officer as well as the Medical Report (Exhibit-2) shows that only two sharp cutting injuries were found on the person of Husnain Khan (P.W. 4) i.e. on his left arm at fore arm (left elbow) and on his left wrist. The next farsa blow given by Rustam on his head and by Aslam Mian on his head were not found by P.W. 5 on medical examination. Likewise, the doctor did not find any injury on the palm of Husnain Khan caused by appellant Lukman Mian. Unfortunately, this aspect of the case was not considered by the learned trial court in its judgment and if it would have been considered by the learned trial court the conclusion might have come that the manner of occurrence does not find corroboration from the evidence of the doctor (P.W. 5). Not only this that the injuries found on the person of Husnain Khan by P.W. 5 do not tally from the prosecution version but the injuries found by P.W. 5 on injured Noor Hasan Khan (P.W. 3) also does not tally with the prosecution version. According to the prosecution case, when Noor Hasan Khan, P.W. 3 tried to intervene he was assaulted by Ainul Mian with farsa causing injury on his head but P.W. 5 did not find any sharp cutting injury on the head of Noor Hasan Khan as he has deposed that only one abrasion in front of head measuring 3/4" x 1/4" was found on the person of Noor Hasan Khan which was caused by hard and blunt substance. The injury report of Noor Hasan Khan (Exhibit-2/1) also corroborates this fact.

On the basis of the above discussions, I have no hesitation to hold that the manner of occurrence as unfolded in the fard-e-bayan of the informant and in the evidence of P.W. 1, 3 and 4 does not stand corroborated from the medical evidence of P.W. 5 as well as Exhibit-2 and 2/1, the medical reports submitted by P.W. 5. Accordingly, I hold that the prosecution has failed to prove the manner of occurrence.

It has been argued on behalf of the learned advocate of the appellants that the learned trial court has failed to consider that the prosecution has not proved the genesis of the occurrence and in absence of such proof the trial court should not have believed the prosecution case. From the perusal of fard-e-bayan as well as from the evidence of P.Ws. 1, 2, 3 and 4, it appears that the genesis of the occurrence was that one Sale Imam and appellant Zahir Mian were quarreling on the question of cutting of a Sisam tree and on hearing halla the informant Husnain Khan and Noor Hasan Khan had arrived there and when they tried to intervene between Sale Imam and appellant Zahir Mian, they were assaulted and the occurrence took place. His argument was that in order to prove the genesis of the occurrence, the best witness was Sale Imam but the said Sale Imam has not come forward to say that at the time of occurrence any quarrel or altercation was going on between him and the appellant Zahir Mian which had provided occasion to informant Husnain Khan to intervene between him and the appellant Zahir Mian. I fully agree with the argument of the learned counsel for the appellants and hold that Sale Imam was the only competent witness to say that just before the occurrence some altercation or quarrel was going on between him and appellant Zahir Mian and when the informant Hussain Khan tried to pacify them the assault took place. In absence of examination of Sale Imam it cannot be held that the genesis of occurrence which was unfolded in the fard-e-bayan of the informant as well as in the evidence of P.Ws. 1, 2, 3 and 4 was proved and, so, I hold that the prosecution has also failed to prove the genesis of the occurrence.

The next point was argued on behalf of the defence counsel that the intervention of the prosecution side was uncalled for as the Sisam Tree and the land on which the Sisam tree was standing, admittedly, belonged to appellant Zahir Mian and, as such, there was no occasion for Sale Imam to raise objection on cutting the Sisam tree. From the perusal of evidence of P.W. 1 (para 12) it appears that P.W. 1 has admitted that about twenty one years ago the appellant Zahir Mian had purchased the land over which the Sisam tree was standing through a sale deed executed by one Suleman Khan. P.W. 2 Jahangir Khan at para 2 has deposed that the land on which Sisam tree was standing belonged to appellant Zahir Mian. P.W. 3 Noor Hasan Khan at para 3 has deposed that formerly Sisam tree belonged to Suleman Mian but in the year 1969 the said Suleman Mian sold the land to appellant Zahir Mian through a sale deed and since then appellant Zahir Mian is in possession of the said land. P.W. 4, who is the informant of this case has deposed at para 6 of his deposition that Sisam tree was standing on the land purchased by the accused persons. Thus, the evidence on record fully establishes beyond doubt that the Sisam tree which was the bone of contention belonged to appellant Zahir Mian and during investigation the I.O. (P.W. 6) Abdul Qayyum Khan has also found that the Sisam tree which was the bone of contention belonged to the accused persons of this case. He has deposed at para 3 that the P.O. land is situated in village Sikti Bhikham which belonged to accused persons. Thus, the evidence on record fully establishes that the land over which the Sisam tree was standing belonged to the appellants and as such, there was no justification for Sale Imam or any other person to raise objection on the cutting of the Sisam tree by appellant Zahir Mian. Moreover, the allegation regarding the cutting of Sisam tree was found false by the I.O. as he had not found any mark of violence on the said Sisam tree. Thus, the evidence on record shows that the assault took place on the land belonging to the appellant and in absence of examination of Sale Imam as well as in the absence of any mark of violence on the alleged Sisam tree, it is difficult to hold that the occurrence took place because of the fact that P.W. 4 Husnain Khan and P.W. 3 Noor Hasan Khan had tried to intervene in the quarrel between Sale Imam and Zahir Mian which was started on the question of cutting of Sisam tree and, so, it can be safely held that the informant Husnain Khan and injured Noor Hasan Khan were trespassers upon the land of the appellants. All these facts establish that the prosecution has not come with clean hand and the prosecution case as disclosed in the fard-e-bayan and as disclosed in the evidence of P.Ws. 1, 2, 3 and 4 is not reliable.

In such circumstance, I am of the opinion that the conviction and the sentence passed against the appellants are not justified and it requires interference. In the result, this appeal is hereby allowed. The order of conviction and the sentence passed against the appellants is hereby set aside. The appellants Aslam Mian, Ainul Mian, Lukman Mian and Rustam Mian are acquitted of the charge under sections 148, 324 of the Indian Penal Code and the appellant Zahir Mian is acquitted of the charge under sections 147 and 323 of the Indian Penal Code. The appellants are on bail and, as such, they are discharged from the liabilities of their respective bail bonds.