Jainul Sheikh vs State of Bihar

B.B.Mangalmurti, J.

Heard learned counsel for the appellants and learned counsel for the State.

The appellants are aggrieved by the impugned Judgment of conviction and Order of sentence dated 29th June, 2000, passed by the Additional

Sessions Judge, Pakur in S.T. No. 20 of 1997 / 4 of 1997, whereby, the appellant-Jainul Sheikh and another appellant-Hajikul Sheikh have been

convicted and sentenced for the offence under Section 307/34 of the Indian Penal Code to undergo R.I. for seven years by each of the appellant.

Appellant- Hajikul Sheikh has been further convicted and sentenced for the offences under Sections 326 of the Indian Penal Code and to undergo R.I.

for four years under Sections 326 of the Indian Penal Code. Both the sentences shall run concurrently.

The prosecution case was instituted on the basis of the fardbeyan of Abu Tahir Sheikh, recorded on 07.06.1996 at about 19.30 at Pakur (M) Police

Station, wherein he has stated that on Friday 07.06.1996 at about 4.00 p.m. he was going to the tea stall of Hirasuddin Seikh situated at Taranagar for

taking tea. While he was about to reach the tea stall, he saw some altercation going on between his brother Ansarul Sheikh with accused Jainul

Sheikh, Hajikul Sheikh, Maniruddin Sheikh and Ali Hussain Sheikh. When he tried to pacify them, accused Jainul asked his brother Hajikul to bring

Hansua from the house and kill both the brothers i.e. informant Abu Tahir Sheikh and Ansarul Sheikh. Thereafter, Hajikul Sheikh brought Hansua

from the house and gave a blow to the informant in his waist due to which the informant fell down. Thereafter Hajikul Sheikh assaulted the brother of

the informant by Hansua due to which Ansarul sustained injury on his left hand. On hearing the noise, the villagers gathered and intervened in the

matter. Thereafter, the informant went to the Police Station in injured condition and gave his fardbeyan. On the basis of his fardbeyan, Pakur (M) P.S.

Case No. 109 of 1996, corresponding to G.R. No.225 of 1996, was instituted for the offence under Section 324 of the Indian Penal Code, against four

accused persons namely, Jainul Sheikh, Hajikul Sheikh, Maniruddin Sheikh and Ali Hussain Sheikh and investigation was taken up. During

investigation, Section 326 of the I.P.C. was added. After investigation, the Police submitted Charge-sheet under Sections 324, 326 and 307/34 of the

Indian Penal Code.

After taking cognizance, the case was committed to the Court of Sessions, then charge was framed against all four accused persons for the

offence under Section 307/34 of the Indian Penal Code and in addition to it, charge was also framed against accused Hajikul Sheikh for the offence

under Section 326 of the Indian Penal Code, and upon pleading not guilty and claiming to be tried, they were put to trial.

In course of trial, eight witnesses were examined on behalf of the prosecution, including the I.O. and the Doctor, but no defence witness was

examined on behalf of the accused persons, though they have brought on record three exhibits in support of their case.

P.W.1, Reyajuddin Seikh stated that on the day of occurrence at 4.00 p.m. he was present at the tea shop of Hirasuddin which is situated in village

Taranagar, where he saw that some altercation was going on in between his brother Ansarul and Jainul because Jainul used to assault his wife

Wahida Bibi who happens to be niece of Ansarul. He suggested to divorce her. Thereafter, Jainul told his brother Hajikul to bring Hansua. Hajikul

brought Hansua and assaulted on the back of Abu Tahir and also assaulted Ansarul on his hand. On alarm, many villagers assembled there. In his

cross examination, this witness has stated that Ansarul is his brother. He admitted that on the same day Mehar Nigar was murdered in which Rejaul

Sheikh is one of the accused.

P.W.2 is Mirajul Sheikh who stated that on the day of occurrence he had gone to the tea shop of Hirasat and saw that Ansarul was quarrelling with

Jainul, Ali Hussain and Maniruddin. The niece of Ansarul, Wahida was married with Jainul. Ansarul was accusing Jainul about assault caused to his

niece Wahida as there was no issue from her. Jainul called his brother Hajikul to bring Hansua and Lathi. Thereafter, Hajikul brought Hansua and

assaulted Abu Tahir with Hansua. When Ansarul tried to save his brother Abu Tahir, Hajikul also assaulted Ansarul causing injury on his hand.

P.W.3 Bismillah Sheikh stated that on the day of occurrence on Friday at 4 p.m. he was at the tea shop of Hirasuddin and saw that there was

scuffle between Hajikul, Jainul and Ansarul. Jainul told Hajikul to bring Hansua then Tahir came and intervened not to quarrel. Hajikul brought Hansua

from his house and assaulted Tahir on his back. When Ansarul came to save Tahir, Hajikul assaulted Ansarul on his left hand. Thereafter, on hulla,

villagers gathered there. Mehar Nigar also came there and objected about the quarrelling between them, then Hajikul assaulted Mehar Nigar upon her

chest. He recognized accused persons in Court. During cross-examination, he admitted that he is Samdhi of Najrul Sheikh. He was not aware

whether Najrul was an accused in murder case of Mehar Nigar or not.

P.W.4-Ansarul Sheikh is one of the injured and eye witness of this case. He was also present at the tea shop of Hirasuddin. Quarrel between him

and Jainul started, then Hajikul, Anisuddin and Ali Hussain came there. Jainul ordered Hajikul to bring Hansua from the house. Hajikul assaulted Tahir

on his back from Hansua as also to this witness causing injury to his left hand. On alarm, many persons assembled there and matter ended. He

recognized accused persons in court. During cross-examination, he stated that Mehar Nigar also got injuries for which she was taken to Pakur but she

died on the way. He admitted that he is one of the accused in that murder case.

P.W.5 is Abu Tahir Sheikh, informant of this case who stated that on the day of occurrence he was taking tea at the shop of Hirasuddin at

Taranagar. His younger brother Ansarul was with him who also came to that shop for taking tea. At that time scuffle between Ansarul and Jainul

took place. Ansarul told Jainul to take care of her niece Wahida Rahman. Abu Tahir tried to pacify the matter then Jainul told Hajikul to bring Hansua

and Hajikul assaulted him on his back. He also stated that if villagers would not have intervened then accused persons might have killed them. He

recognized accused persons in court and claimed to recognize absentee accused. During cross-examination, he admitted that accused are witness in

murder case of Mehar Nigar and they have deposed also. He was cross examined at length.

P.W.6 is Dr. Bindu Bhushan who stated that he examined Abu Tahir Sheikh on 07.06.1996 at 8.15 p.m. and found sharp cut oblique injury 3†x

2†x bone deep near just middle of the back, caused by heavy sharp cut weapon. In his opinion, injury was grievious in nature. He proved injury

report as Ext.- 1.

He also examined Ansarul Sk. on 07.06.1996 at 8.30 p.m. and found sharp cut injury of 2 ½†x 1†x muscle deep, on dorsum surface of left

forearm just above wrist. Injury caused by sharp cut and heavy weapon, simple in nature. This Injury Report was marked as Ext.- 1/1.

P.W.7 is Imamuddin who stated that on 07.06.1996 he was posted as A.S.I. in Pakur (M) Police Station. On that day he recorded the fardbeyan

of Abu Tahir Sheikh at 19.30 and read over it thereafter Informant put his L.T.I. on it. On the basis of fardbeyan, case was registered as Pakur (M)

Police Station and started the investigation. He inspected the place of occurrence and took re-statement of informant. He sent both injured for

treatment to the hospital. He gave details of the place of occurrence which was the road near the house of Ali Hussain. He has proved fardbeyan

which was in his handwriting and proved as Ext.2. Formal F.I.R. was proved as Ext.- 3. Due to his transfer, he handed over Charge of the case on

09.07.1996. During cross-examination, he admitted that on the same day he had inspected the same place of occurrence relating to another case

involving death of Mehar Nigar. He further stated that he had prepared inquest report of Mehar Nigar and had also seized blood stained soil from that

place. He is unable to recollect by that time this case being Pakur (M) P.S. Case No.109 of 1996 was lodged or not. He also stated that he had not

seized any Hansua from the place of occurrence.

P.W.8 is Samshul Haque, another I.O. of this case who had taken over the charge from previous I.O. He had recorded the statement of injured

Ansarul while he was in custody. He had obtained the injury-reports and after completion of investigation submitted the charge-sheet in this case.

The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procdure in which they have denied the

evidences against them.

Although the defence has not adduced any oral evidence but proved certified copy of the deposition in Sessions Case No. 205 of 1996 as well as

certified copy of judgement in that case as Ext.- B, and certified copy of F.I.R. of Pakur (M) P.S. Case No.108 of 1996 giving rise to S.C. Case No.

205 of 1996 as Ext.- C.

Learned counsel for the appellants submitted that the Trial Court found only these two appellants guilty under Section 307/34 as well as another

appellant Hajikul Seikh was also found guilty under Section 326 of the Indian Penal Code. He further submitted that it was not a pre-planned assault

and no repeated blow was given and only minor force was applied. Therefore, ingredients of Section 307 are not made out in this case. He also

submitted that the weapon of assault was not seized by the first I.O. who has been examined as P.W.-7. This witness has categorically admitted that

he was present at the place of occurrence in connection with another case and at that time he was not aware about the lodgement of the present

case. He further submitted that it is a case and counter case and witnesses have also admitted that they are accused and the appellants are witnesses

of the murder case of Mehar Nigar. The time of occurrence and place of occurrence would reveal that informant side was assailant and just to save

themselves from a murder case, they have lodged this false case. There is absence of mens rea and intention to cause attempt on the life of the

informant. Therefore, the case does not fall under the parameter of Section 307/34 of the Indian Penal Code. The injury-report of Ansarul Seikh was

proved as Ext.-1/1. The Doctor has found the injury simple in nature. The injury caused to informant Abu Tahir Seikh is found grievious in nature

which was in the middle of the back and the nature of injury was not such to cause death. Therefore, in totality, the conviction is not sustainable under

Section 307 of the Indian Penal Code. Lastly, he submitted that the witnesses examined on behalf of the prosecution are highly interested witnesses.

Learned A.P.P. appearing on behalf of the State opposed and submitted that the three eye-witnesses P.W.-1 Reyajuddin Seikh, P.W.-2 Mirajul

Seikh and P.W.-3 Bismillah Sheikh are eye-witnesses of this case whereas P.W.-4 Ansarul Seikh and P.W.-5 Abu Tahir Seikh ( Informant of this

case) are injured of this case and have proved the prosecution case completely. He further submitted that the injury inflicted upon the informant is

grievious in nature and court below has rightly convicted both the appellants. He also submitted that even if the witnesses are related and the

evidences are cogent, credible and trustworthy, then their evidences cannot be discarded merely on the ground of his relationship with the deceased or

injured. He relied on a decision of R. Prakash Versus State of Karnataka reported in (2004) 9 SCC 27.

Having heard learned counsel for both the sides and on scrutiny of evidences brought on record, it appears that on the order of Janinul Sheikh,

Hajikul brought Hansua from the house and caused injury to informant Abu Tahir Sheikh on his back and the doctor has found sharp cut oblique injury

3†x 2†x bone deep near just middle of the back, caused by heavy sharp cut weapon. In his opinion, injury was grievious in nature whereas Ansarul

Sheikh, another eye witness, has also got injury on his left hand and the doctor has found sharp cut injury of 2 ½†x 1†x muscle deep, on dorsum

surface of left forearm just above wrist but found injury simple in nature. It can be inferred that it was not a pre-planned assault and no repeated blow

was given but only minimal force was applied. It further appears that prosecution have able to establish the injury caused by the appellants in which

one of them is instigator, therefore, both the appellants are held to be voluntarily causing grievious hurt by means of sharp cut instrument used as a

weapon of offence that may likely to cause death. Both the appellants have caused grievious hurt on grave and sudden provocation with intent to

cause grievious hurt to both the injured persons i.e. informant and his brother. The ingredients of Section 307 of the Indian Penal Code have not been

proved by the prosecution, but has able to prove the grievious hurt on sudden provocation. Therefore, both the appellants are held guilty only under

Section 326 of the Indian Penal Code. Therefore, in such circumstances, both appellants Jainjul Sheikh and Hajikul Sheikh who have been held guilty

under Section 307/34 of the Indian Penal Code, is modified and are held guilty only under Section 326 of the Indian Penal Code. So far another

appellant Hajikul Sheikh who has been held guilty by the trial court under Section 326 of the Indian Penal Code, is hereby confirmed.

In these circumstances, both the appellants are held guilty under Section 326 of the Indian Penal Code for voluntarily causing grievious hurt by

sharp cutting weapon. Appellant Jainul Sheikh is awarded sentence of four years rigorous imprisonment, whereas Hajikul Sheikh has already been

held guilty separately under Section 326 of the Indian Penal Code and has been awarded four years rigorous imprisonment by the Sessions Court

which is confirmed.

In the result, this appeal is partly allowed with the modification as indicated hereinabove in S.T. No. 20 of 1997 / 4 of 1997 passed by the

Additional Sessions Judge, Pakur dated 29th June, 2000.

Let the Lower Court Record be sent back to the court concerned along with the copy of this judgment.

The appellants are on bail so bail of both the appellants are hereby, cancelled. The court below will take steps so that appellants will serve out the

sentence awarded to them.