Shamshad Ahmad @ Samsad Ahmad & Ors. vs The State Of Bihar

Heard learned counsel for the appellants, learned counsel appearing on behalf of the informant and learned Additional Public Prosecutor appearing on behalf of the State.

The present appeal has been preferred against the judgment of conviction dated 13.09.2018 and order of sentence dated 17.09.2018 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Siwan in Sessions Trial No. 223 of 2012 arising out of Duraundha P.S. Case No. 71 of 2011, whereby the three appellants, have been convicted for the offences punishable under Sections 307/34 and 341/34 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- for the offence under Section 307/34 of the Indian Penal Code and further to undergo rigorous imprisonment for one year for the offence under Section 341/34 of the Indian Penal Code. Both the sentences have been directed to run concurrently.

The prosecution case, in brief, is that on 21.05.2011 at about 07:30 P.M., the informant, namely, Mahboob Rabbani, was returning towards his clinic after taking medicines when, near the place of occurrence, these appellants allegedly stopped him. It is alleged that Israil Ansari (Appellant No. 3) and Shamshad Ahmad (Appellant No. 1) assaulted the informant, due to which he fell down, whereafter Israil Ansari (Appellant No. 3) caught hold of his leg and the appellants assaulted him. It is further alleged that Akhtar Hussain (Appellant No. 2) exhorted the other accused to kill the informant and thereafter, the informant was assaulted with a knife and other articles, causing injuries to him. The occurrence is stated to have arisen on account of a land dispute between the parties. On the basis of the fardbeyan of the informant, Duraundha P.S. Case No. 71 of 2011 was instituted.

After investigation, charge-sheet was submitted against the appellants for the offences under Sections 307, 324, 341, 323/34 and 379/34 of the Indian Penal Code. Cognizance was taken and the case was committed to the Court of Sessions. Charges were thereafter framed against the appellants under Sections 307, 324, 341 and 323/34 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried.

In order to establish the charges, the prosecution examined eight witnesses. P.W. 1, namely Mankeshwar Kumar Singh, supported the prosecution case regarding the assault upon the informant. P.W. 2, namely Nagendra Singh, also supported the occurrence and stated about the assault upon the informant by the appellants. P.W. 3, namely Mahbood Ansari, was declared hostile and did not support the prosecution case. P.W. 4, namely Rajendra Singh, supported the prosecution version and stated that the appellants assaulted the informant, resulting in his falling down and sustaining injuries. P.W. 5, namely Mahfooz Alam, son of the informant, also supported the occurrence and stated about the assault committed upon his father by the appellants. P.W. 6, namely Mahboob Rabbani, is the informant and injured witness, who narrated the occurrence and attributed assault to the appellants. P.W. 7, namely Ramji Prasad, is the Investigating Officer, who deposed regarding the investigation, inspection of the place of occurrence and submission of charge-sheet. P.W. 8, namely Dr. Vijay Kumar, is the doctor who examined the informant and proved the injury reports. The prosecution also exhibited the fard beyan, its signature, paging of the F.I.R., formal F.I.R. and injury reports as Exhibits 1 to 5/1.

The statements of the appellants under Section 313 of the Code of Criminal Procedure were recorded, wherein they denied the incriminating circumstances and claimed false implication. The appellants did not adduce any oral or documentary evidence in defence.

On consideration of the evidence available on record, the learned trial court held that the prosecution had been able to establish the occurrence and the assault upon the informant and, accordingly, convicted the appellants under Sections 307/34 and 341/34 of the Indian Penal Code and sentenced them as stated in the opening paragraph of this judgment. The appellants were not found guilty of the other charges.

Learned counsel for the appellants submits that the learned trial court has not properly appreciated the evidence on record. It is submitted that P.W. 3 was declared hostile and there are material contradictions in the evidence of the other witnesses. It is further submitted that there was previous land dispute between the parties and the appellants have been falsely implicated. It is also submitted that the occurrence is of the year 2011, the appellants have remained on bail during the pendency of the appeal and have already suffered the rigours of a protracted criminal proceeding. It is, therefore, submitted that the conviction may be set aside.

Learned counsel appearing on behalf of the informant as well as learned Additional Public Prosecutor appearing for the State have opposed the appeal. It is submitted that the evidence of the informant, who is an injured witness, is corroborated by the other prosecution witnesses and the medical evidence. It is, therefore, submitted that the conviction recorded by the learned trial court calls for no interference.

This Court has considered the rival submissions and perused the materials available on record. The evidence of P.W. 6, the informant and injured witness, is substantially corroborated by P.Ws. 1, 2, 4 and 5 with regard to the occurrence and assault upon him. The medical evidence of P.W. 8 also establishes that the informant had sustained injuries. Though P.W. 3 did not support the prosecution case, his hostility by itself does not render the consistent evidence of the injured informant and the other witnesses unacceptable. The admitted existence of a land dispute between the parties, on the other hand, furnishes a background for the occurrence but does not, by itself, establish false implication.

So far as the offence under Section 307 of the Indian Penal Code is concerned, the evidence on record indicates that the assault was committed pursuant to a common intention of the appellants. The evidence of the informant regarding the assault and the exhortation by Akhtar Hussain (Appellant No. 2) finds corroboration from the other witnesses. The learned trial court has, therefore, rightly appreciated the evidence in holding the appellants guilty under Sections 307/34 and 341/34 of the Indian Penal Code. This Court finds no sufficient ground to interfere with the finding of conviction.

So far as the sentence is concerned, the occurrence is of 21.05.2011 and more than fifteen years have elapsed since the occurrence. The appellants have remained on bail during the pendency of the present appeal. The conviction is under Section 307/34 of the Indian Penal Code, but the sentence awarded is of five years and the sentences under the other provision were directed to run concurrently. Considering the age of the case, the period for which the appellants have faced the criminal proceeding and the fact that they have remained on bail during the pendency of the appeal, this Court is of the view that the ends of justice would be met if the substantive sentence imposed upon the apellants is reduced to the period already undergone.

Accordingly, the judgment of conviction dated 13.09.2018 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Siwan in Sessions Trial No. 223 of 2012 arising out of Duraundha P.S. Case No. 71 of 2011, whereby the appellants have been convicted under Sections 307/34 and 341/34 of the Indian Penal Code, is hereby affirmed. However, the sentence imposed upon the appellants is modified to the extent that the substantive sentence of each of the appellants is reduced to the period already undergone. The fine of Rs.10,000/- imposed upon each of the appellants is also set aside.

In view of the modification of sentence to the period already undergone, the appellants, are discharged from the liability of their respective bail bonds.

Accordingly, this appeal stands disposed of.

Interlocutory application/s, if any, also stands disposed of.