Jharkhand High Court

Md. Aminuddin vs The State Of Jharkhand on 13 April, 2023

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Criminal Appellate Jurisdiction)

                       Acquittal Appeal No.4 of 2020
Md. Aminuddin, aged about 58 years, son of late Md. Mumtaz, resident of
village & PO-Logai, PS-Meharma, District-Godda        ...... Appellant
                                  Versus
1. The State of Jharkhand
2. Md. Imran, son of Md. Hamid
3. Md. Hamid, son of late Sk. Shafique
4. Md. Salim, son of late Md. Mahboob
5. Md. Shamim, son of Md. Doman
6. Md. Hakim, son of late Sk. Safique
7. Md. Irfan, son of Md. Hamid
8. Md. Aziz, son of late Md. Mahboob
9. Md. Razzak, son of Md. Aziz
10. Md. Bhutto, son of Md. Hakim
11. Md. Furkan, son of Md. Hamid
All are resident of village-Logai, PO- Logai, PS-Meharma, District- Godda.
                                                       ...... Respondents


CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellants         : Mr. Manoj Kumar Sah, Advocate
For the State of Jharkhand : Mr. Sanjay Kumar Srivastava, APP
                             -------------
                                                              ORDER

13thApril 2023 Per, Shree Chandrashekhar, J.

The judgment dated 27th November 2019 passed in S.T Case No.115 of 2011 in which ten persons out of whom Md. Hamid, Md. Salim, Md. Shamim, Md. Hakim, Md. Irfan, Md. Aziz, Md. Razzak, Md. Bhutto and Md. Furkan were put on trial on the charge under sections 148, 341/149 and 302/149 of the Indian Penal Code and Md. Imran was put on trial under sections 148, 341/149, 324/149 and 302/149 of the Indian Penal Code has been challenged by the informant who is none else but father of the deceased Md. Irshad.

2. In S.T Case No.115 of 2011 the learned trial Judge has held as under:

"23. From perusal of oral or documentary evidence as on record, count found that I.O. PW-7 clearly recorded in para-57 of the case diary that villagers beaten to Md. Irshad and this witness identified the place of occurrence near the school in the shop of Md. Hamid, in which found a chouki. DW-2 Khairun Nisha clearly deposed that

in the shop when she present at cleaning the shop Md. Irshad came there and caught her without her consent and push on the earth, so she make a noise and crowed person beaten to Md. Irshad. PW-1 Md Shamsher Alam, PW-2 Md Irfan, PW-3 Md. Mazid is deposed that there were 500 to 600 persons present at the place of occurrence because near the Hatia market is organized, so many persons seen the occurrence. According to PW-4 Md. Amiruddin he informed to village choukidar Pratap Paswan who informed the police and untied Md. Irshad from rope but no Partap Paswan came in the court to support the prosecution case and I.O. do not seized any rope. The informant examined as PW-4 in same accepted that his son and daughter also present at the place of occurrence but Md. Sararaj, and daughter Juhi do not came to support the prosecution. From perusal of oral evidence of PW-5 Dr. Pradeep Kr. Sinha it is clear that there 11 bruise injuries on the body of deceased but do not support the statement that Md. Irshad beaten by stick and express that such injuries may be possible by accident. Where as informant and other witnesses PW-1, PW-2, PW 3 deposed that Md. Irshad beaten by stick. It is also clear that place of occurrence is the shop of accused Md. Hamid near the road where also organized the hat market on that day and time of occurrence is about 2.00 P.M. So it is certain that there are so many persons present in the hatia market but no independent witness came to support the prosecution case. The witnesses no. PW-1. PW-2, PW-3 and PW-6 are the relatives of informant, so their evidence is doubtful in the absence of independent evidences. The informant deposed that his son Mid went to the house of Md. Hamid to demand a remind money but at the place of occurrence no body resides as accepted by prosecution witnesses. Defence witness DW-1 and DW-3 seen at the place of occurrence where DW-2 sweeping and brooming then Md. Irshad caught her to bad intention and push on the earth, so she make the noise and public crowded and beaten to Md. Irshad. In this way court found that prosecution story is not believable that Md. Irshad reached in that house where no any accused resides The prosecution story that they informed to choukidar Pratap Paswan who informed the police but no Partap Paswan produced in the court for examination on behalf of prosecution side. The witness Bibi Juhi and Sarfaraj who is the daughter and son of the informant do not produced in the court. So court found that prosecution side badly failed to prove alleged charges against the accused persons who facing the trial and court found that although Md. Irshad is died in the hospital after suffering injuries, but who caused the injuries is not clear. Hence provide the benefit of doubt in the favour of accused persons and following order is passed.

ORDER

24. In ST Case No. 115/11 the alleged charges u/s- 148, 341, 302 read with 149 IPC against accused persons Md. Hamid, Md. Salim, Md. Shamim, Md. Hakim, Md. Irfan, Md. Aziz, Md. Razzak, Md. Bhutto and Md. Furkan and charge u/s 148, 341, 324, 302 read with 149 IPC against the accused Imran Ansari alias Md. Imran are not proved beyond reasonable doubt successfully on behalf of prosecution sides and court provided the benefit of doubt in favour of above accused persons. Hence found and held innocent and acquitted from above alleged charges. Accused persons and their bailors are also discharged from the liabilities of their bail bonds."

3. The case set-up by the prosecution in the fardbeyan of the informant is that there was an altercation between his son and Md. Hamid who was alleging teasing of his daughter by Md. Irshad. In the meantime,

other family members of Md. Hamid armed with deadly weapons arrived there and assaulted Md. Irshad who finally succumbed to the injuries caused by the accused persons.

4. On the basis of the fardbeyan of Md. Aminuddin, Mahagama PS Case No.168 of 2010 was registered against the accused persons who are the respondent nos.2 to 11 in this acquittal appeal for committing the aforesaid offences on 18th October 2010.

5. In course of the trial the prosecution has examined seven witnesses out of whom four are the related witnesses.

6. Dr. Pradeep Kumar Sinha, who conducted the postmortem examination over the dead body of Md. Irshad has observed the following injuries on his person:

(i) Bruise 1 ½" x 1" over frontal scalp,

(ii) Bruise 1" x 1½" over posterior part of left arm,

(iii) Bruise 2" x 2" over dorsum of left hand ,

(iv) Bruise ½" x 1/2" over left elbow laterally,

(v) Bruise 10" x 1" over left thigh in front,

(vi) Bruise 6" x 1" over lower part of right thigh,

(vii) Bruise 2" x 1" over right frontal posterior,

(viii) Bruise 6" x 1" over upper abdomen over left side,

(ix) Bruise 2" x 1" over right lower abdomen in front,

(x) Bruise 4" x 1" over back of right side of chest, and

(xi) Bruise 8"x 1" over left side of back of chest.

7. The respondent nos.2 to 11 have set-up a defence that Md. Irshad who was stalking the daughter of Md. Hamid was assaulted by the villagers. To establish such defence, the respondent nos.2 to 11 have examined three witnesses out of whom DW2 is related to accused nos.2 and 3.

8. DW1 has stated in the Court that Md. Irshad who was trying to use criminal force against a girl was beaten by the villagers. Presumably to a suggestion from the prosecution that he has not seen the occurrence, DW1 has stated in his cross-examination that his house is situated at about 150 yards from the place of occurrence. DW2 and DW3 both have also deposed in the Court that Md. Irshad was trying to outrage modesty of a girl of the village and when caught the villagers thrashed him.

9. This is well-established in law that testimony of the defence witnesses is required to be examined with the same yardstick which is applied when scrutinizing the prosecution evidence.

10. In "Dudh Nath Pandey v. State of U.P." (1981) 2 SCC 166 the Hon'ble Supreme Court has observed as under:

"19. ...Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."

11. In "State of Haryana v. Ram Singh" (2002) 2 SCC 426 the Hon'ble Supreme Court has observed as under:

"19. ............Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one -- the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court."

12. On a glance at the testimony of defence witnesses, we gather that nothing material could be elicited from them by the prosecution party so as to render those witnesses untruthful. This is also well-settled a proposition in law that the prosecution has to establish its case beyond all reasonable doubts and wherever two views are possible the view leaning towards the accused shall be adopted by the Court [refer, "Harijana Thirupala v. Public Prosecutor" (2002) 6 SCC 470].

13. In our opinion, the defence evidence tendered through DW1, DW2 and DW3 probablises the defence version that Md. Irshad was assaulted by the villagers when he was found teasing the daughter of Md. Hamid.

14. There is another aspect of the matter which throws considerable doubt on the prosecution story, that the respondent nos.2 to 11 have assaulted Md. Irshad. As many as ten persons have been named as accused who according to the prosecution have caused 11 injuries, all through hard and blunt objects. The number of assaulters and the number of the injuries caused to Md. Irshad is a clear pointer to the fact that the prosecution story is untrue.

15. In a case where the defence story is probablised through the materials produced by the accused or from the prosecution's own evidence, it cannot be said that the prosecution has established the case against the accused beyond all reasonable doubts.

16. In "Jaswant Singh v. State of Haryana" (2000) 4 SCC 484 the Hon'ble Supreme Court has held as under:

"21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when

there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference(see hivaji Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat : (SCC p. 229, para 7) "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then -- and then only -- reappraise the evidence to arrive at its own conclusions."