Wakil Miyan Son of Late Rohan Miyan vs The State of Bihar

Since both the appeals arise out of common

judgment and order of conviction, they are being disposed of by this

common judgment.

Md. Jalil (P.W.-7) had lodged the First

Information Report on 24.02.1999 at the clinic of one Dr. Bhartendu

Kumar, MIT, Main Road under Sahebganj police station, alleging

that on the same day, while the appellants were trying to construct a

house on the land belonging to him, he had protested. On such

protest, appellants Wakil Miyan and Rasul Miyan assaulted him by

means of lathi. Appellant Mobarak Miyan inflicted a dagger blow

which hit the informant (P.W.-7) on the left side of his chest. The

attack by the dagger was repeated by the appellant Mobarak Miyan

and on the second occasion, the informant claims to have been

injured on his left soldier. The informant, thereafter fell down on the

ground and raised hue and cry which led to the assemblance of local

villagers. Amongst the viewers of the occurrence, Md. Islam and

Kubar Miyan were named in the F.I.R, both of whom have not been

examined during the trial. Another witness viz. Md. Sahid, was

examined as P.W. 5, but he has been declared a hostile witness.

On behalf of the prosecution, nine witnesses

were examined and two witnesses were offered on behalf of the

defence. The Trial Court, on perusal of the deposition of the

witnesses and materials brought on record, convicted the appellants

Wakil Miyan and Rasul Miyan (Cr. Appeal (S.J) No. 623 of 2015) for

the offences under Sections 323, 342 and 447 of the Indian Penal

Code and sentenced them to undergo R.I. for five months each for the

offences under Sections 323 & 342 of the Indian Penal Code and R.I.

for two months for the offence under Section 447 of the Indian Penal

Code. The sentences have been, however, directed to run

concurrently.

The appellant Mobarak Miyan has been

convicted for the offence under Sections 342, 447, 324 and 307 of the

Indian Penal Code and has been sentenced to undergo R.I. for five

months for the offence under Section 342 of the Indian Penal Code,

R.I. for two months for the offence under Section 447 of the Indian

Penal Code, R.I. for two years for the offence under Sections 324 of

the Indian Penal Code and R.I. for four years for the offence under

Section 307 of the Indian Penal Code. The sentences with respect to

the appellant Mobarak Miyan also have been directed to run

concurrently.

Md. Amin Miyan who has been examined as

P.W. 1 and who is son of the informant/Md. Jalil (P.W.-7) has

narrated before the Trial Court that about 6 1/2 years ago, the

appellants were making an attempt to erect a house and, on protest by

his father Md. Jalil, they assaulted Md. Jalil. He has specifically

stated that the appellants Wakil Miyan and Rasul Miyan assaulted

Md. Jalil by means of lathi, whereas appellant Md. Mobarak Miyan

injured the informant by dagger on his left chest and left soldier.

Md. Sarif (P.W.-6), who is an independent

witness, has also supported the prosecution version and has stated that

on hearing the noise from the field, he reached the house of Md. Jalil

(P.W.7) and witnessed the occurrence.

The informant/injured (P.W.7) has supported

the prosecution version and has stated that appellant Wakil Miyan

and Rasul Miyan assaulted him by means of lathi, whereas appellant

Mobarak Miyan inflicted Chura blow leading to injuries on his left

soldier and chest.

Md. Salim (P.W.8), who is another son of the

informant (P.W.7), has also narrated abut the occurrence in the same

manner.

What is required to be seen is as to whether

the injuries suffered by the informant (P.W.7) is in consonance with

his occular testimony and of other witnesses. The Medical Officer

(P.W.9), who examined the informant (P.W.7), has proved the injury

report which is Exhibit-3.

The injuries found on the person of the

informant (P.W.7) were two in numbers:- (i) Incised wound'' 1 1/4"x

1/2" left upper abdomen extending from left costal margin down two

inch from midline, communicating with a cut 2"x 1/4"x 1/2" which is

over left lobe of liver with bleeding (ii) an incised wound of similar

dimension.

Injury No. 1 was found to be grievous which

could only have been caused by a sharp object.

Learned counsel for the appellants has

submitted that the prosecution case is absolutely false and because of

land dispute, the appellants, who are the agnates of the informant and

other witnesses, have been falsely implicated. It has also been

submitted that the appellants had purchased a land falling in Khata

No. 518, Plot Nos. 2890 and 2891, measuring a total area of 10

decimals and informant had falsely staked his claim over the said

land. It has further been submitted that the place of the occurrence

also could not be established. Apart from this, it has been argued that

the Investigating Officer of this case and the named witnesses in the

F.I.R have not been examined and no explanation also has been

offered for their non-examination. There has been a delay in lodging

of the F.I.R as well.

Taking into account the categorical

deposition of P.Ws 1, 6, 7 and 8 and P.W.9 having found the injuries

suffered by P.W.7 to be in consonance with the occular testimony, the

Trial Court has convicted the appellants Wakil Miyan and Rasul

Miyan under Sections 323, 342 and 447 of the Indian Penal Code and

appellant Mobarak Miyan under Sections 342, 447, 324 and 307 of

the Indian Penal Code.

By order of sentence dated 31.08.2015,

appellants Wakil Miyan and Rasul Miyan have been sentenced to

undergo R.I. for five months each for the offence under Sections 323,

342 of the Indian Penal Code and R.I. for two months for the offences

under Section 447 of the Indian Penal Code. The appellant Mobarak

Miyan has been sentenced to undergo R.I. for five months for the

offence under Section 342 of the Indian Penal Code and R.I. for two

months for the offence under Section 447 of the Indian Penal Code

and R.I. for two years for the offence under Sections 324 of the

Indian Penal Code and R.I. for four years for the offence under

Section 307 of the Indian Penal Code.

No fault can be found with the judgment and

order of conviction.

However, taking into account the

relationship between the parties and the land dispute, this Court is of

the view that the sentences imposed upon the appellants is on the

harsher side and needs to be modified.

It has been submitted on behalf of the

appellant Mobarak Miyan that he has remained in custody for about

two and half years. The other two appellants viz. Wakil Miyan and

Rasul Miyan have remained in jail for some time during the period of

investigation.

The conviction of the appellants is, therefore,

sustained.

However, the sentences imposed upon the

appellants are modified to the extent of the period they have already

undergone.

The appeal is dismissed and sentences stand

modified as the aforesaid.

The appellants Wakil Miyan and Rasul

Miyan are on bail. They are discharged from the liability of their bail

bonds. The appellant Md. Mobarak Miyan who is in custody is

directed to be released forthwith, if not required in any other case.

The appeal is partially allowed.

A copy of the judgment be communicated to

the Superintendent of the concerned Jail for record and compliance.