Hafiz Mian @ Hafiz Miya And Ors vs The State Of Bihar
2021 Latest Caselaw 4137 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.406 of 2016
           Arising Out of PS. Case No.-274 Year-2013 Thana- BANIAPUR District- Saran
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1. Hafiz Mian @ Hafiz Miya son of Khalil Mian @ Khalil Miya

2. Khalil Mian @ Khalil Miya, son of Late Mithu Mian @ Mithu Miya

3. Ibrahim Mian @ Ibrahim Miya, son of Khalil Mian @ Khalil Miya

4. Qurban Mian @ Kurban Miya, son of Khalil Mian @ Khalil Miya All of the resident of Village- Amaon, Dhobi Tola, P.S.- Baniyapur, District- Saran at Chapra

... ... Appellants Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

For the Appellants : Mr. A. K. Thakur, Advocate Mr. Ram Binod Singh, Advocate For the Respondent-State: Mr. Dilip Kumar Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)

Date : 17-08-2021

Heard Mr. A. K. Thakur, learned counsel for the

appellants and Mr. Dilip Kumar Sinha, learned Additional

Public Prosecutor for the State.

2. The appellants have challenged the judgment

of conviction dated 14.03.2016 and the order of sentence dated

17.03.2016 passed by the learned Additional Sessions Judge-VI,

Saran at Chapra in Sessions Trial No.209 of 2014 arising out of

Baniyapur P.S. Case No.274 of 2013.

3. By the aforesaid judgment dated 14.03.2016, Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

the appellants' Hafiz Mian @ Hafiz Miya, Khalil Mian @ Khalil

Miya, Ibrahim Mian @ Ibrahim Miya and Qurban Mian @

Kurban Miya have been convicted for the offences punishable

under Sections 302/34 and 323 of the Indian Penal Code (for

short 'IPC').

4. After hearing the convicts on the point of

sentence, vide consequential order dated 17.03.2016, the Trial

Court sentenced them to undergo rigorous imprisonment for life

and a fine of Rs.25,000/- each for the offence punishable under

Sections 302/34 of the IPC and in default of payment of fine to

undergo rigorous imprisonment for an additional period of six

months and rigorous imprisonment of six months for the offence

punishable under Section 323 of the IPC. The Trial Court further

directed that both the sentences shall run concurrently.

5. The sessions trial, in which the impugned

judgment and order were passed relates to the First Information

Report (for short 'FIR') that had been registered on 23.11.2013

at 10 AM in Baniyapur Police Station under Section 154 of the

Code of Criminal Procedure (for short 'CrPC') in respect of an

incident that had occurred at village Amaon, Dhobi Tola situated

at a distance of one and a half kilometres south-west from

Baniyapur Police Station at 8.30 AM on 23.11.2013. Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

6. The FIR giving rise to the sessions trial was

registered based on the fardbeyan of one Nasruddin Mian (P.W.

4), which was reduced into writing by one Rakesh Kumar, a

Sub-Inspector of Baniyapur Police Station.

7. In his farbeyan, the informant Nasruddin

Mian alleged that on 23.11.2013 at 8.30 AM, a panchayati was

commenced near his house for cutting the branch of a pakari

tree (white fig) in which Sabib Mian, Habib Mian and Khalil

Mian, all three sons of Mithu Mian and other villagers had

participated. Khalil Mian and his sons did not accept the

decision taken in the panchayati and started abusing the

informant and his father, which was protested by them.

Thereafter, Khalil Mian and his sons came with lathi from their

houses and started indiscriminately assaulting his father Sabib

Mian and uncle Habib Mian due to which his father sustained

injuries and fell down. Because of the assault, blood started

oozing out from the skull of his father, Sabib Mian and uncle,

Habib Mian. When he along with his brothers Suleman Mian

and Babujan Mian tried to intervene, the accused persons

assaulted them also. He with the help of villagers took Sabib

Mian and Habib Mian to the Referral Hospital, Baniyapur where

the doctor declared his father Sabib Mian as dead. Considering Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

the serious condition of his uncle Habib Mian, the doctor, after

giving first aid, referred him to Sadar Hospital, Chapra for better

treatment. The cause of occurrence was that a day before

Muharram, his younger brother Babujan and cousin Qyamuddin

son of Habib Mian (both not examined) had cut a branch of

pakari tree for which the panchayati was convened.

8. On receipt of the aforesaid fardbeyan of the

informant at 10 AM on 23.11.2013, one Govind Rajbanshi (not

examined), the Station House Officer (for short 'SHO')

Baniyapur Police Station, Saran registered Baniyapur P.S. Case

No.274 of 2013 under Sections 341, 323, 325, 307, 302 and 504

read with 34 of the IPC against Khalil Mian, Ibrahim Mian,

Qurban Mian and Hafiz Mian and entrusted the investigation to

Rakesh Kumar, a Sub-Inspector of Police.

9. The further case of the prosecution is that

Habib Mian was referred from Sadar Hospital Chapra to Patna

where he died after 3 days.

10. On completion of the investigation, the

investigating officer submitted a charge-sheet against all the

four FIR named accused persons on 20.02.2014 for the offences

punishable under Sections 341, 323, 325, 307, 302 and 504/34

of the IPC.

Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

11. On perusal of the charge-sheet, the learned

Chief Judicial Magistrate took cognizance of the offences,

summoned the accused persons, complied with the requirements

of Section 207 of the CrPC and committed the case to the court

of Sessions vide order dated 26.02.2014.

12. Thereafter, the Trial Court framed charges

under Sections 302/34, 307/34, 325/34 and 323/34 of the IPC

against the accused persons to which they pleaded not guilty and

claimed to be tried.

13. Altogether eight prosecution witnesses were

examined during the trial. Rani Bibi (P.W. 1) claims to be an

eyewitness. She is the daughter-in-law of the deceased Sabib

and sister-in-law of the informant. Gulam Mustafa (P.W. 2) was

declared hostile. Sayra Khatoon (P.W. 3) is the wife of the

deceased Sabib Mian and mother of the informant Nasruddin

Mian (P.W. 4). Dr. Krishna Mohan (P.W. 5), Dr. Shailendra

Kumar Singh (P.W. 6) and Dr. Kumar Ravi Ranjan (P.W. 7) are

the doctors, who conducted the postmortem examination on the

bodies of the two deceased and treated the injured persons.

Rakesh Kumar (P.W. 8) is the investigating officer of the case.

14. Apart from the oral evidence the prosecution

proved the following documents during the trial: Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

(i) Postmortem report of Habib Mian (Exhibit-1),

(ii) Postmortem report of Sabib Mian (Exhibit- 1/1),

(iii) Injury reports of Hadis Mian, Qyamuddin

Mian and Nasruddin Mian (Exhibit-2, 2/1 and 2/2

respectively),

(iv) Fardbeyan of the informant (Exhibit-3),

(v) Formal FIR of Baniyapur P. S. Case No. 274 of

2013 (Exhibit-4), and

(vi) Inquest report of the deceased Sabib Mian and

Habib Mian (Exhibit- 5 and 5/1 respectively).

15. Nasruddin Mian (P.W. 4), the informant of

the case is one of the injured in the incident. In his deposition,

he has stated that he was at his door at the time of occurrence

when the panchayati was convened by Khalil Mian for cutting

the branch of the pakari tree. The panches decided to distribute

the portion of the branch of the said tree according to the share

to which Habib Mian and Sabib Mian agreed, but the accused

persons did not accept the decision. They indulged in abusing

the members of the prosecution party. They brought lathi from

their home and started assaulting them. Khalil Mian assaulted

Sabib Mian by lathi on his head, Ibrahim also assaulted him and

Qurban Mian and Hafiz Mian assaulted Habib Mian. He further Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

stated that Qyamuddin (not examined), Hadis (not examined)

and he himself received injury on their head. He further stated

that Suleman had also received injury. He further stated that

injured persons were treated at Baniyapur Referral Hospital.

During treatment, the doctor said that Sabib Mian had already

died. Habib Mian was referred to Chapra Sadar Hospital and

from Chapra he was taken to Patna where he also died after

three days. He stated that his oral statement was recorded by the

police, which was read over and explained to him and finding

the contents to be true, he put his thumb impression over the

statement given before the police. He stated that when he was

making his statement, Sayra Khatoon was present and she had

also put her signature over his statement recorded by the police.

He further stated that Sayra Khatoon had also put her thumb

impression on the inquest report of Sabib Mian, which was

prepared in his presence. He further stated that he became a

witness to the inquest report of Habib Mian.

16. In cross-examination, he admitted that no

document of panchayati was prepared rather it was to be

prepared after panchayati. He further admitted that there is a

Gram Panchayat in the village, which consists of elected

Mukhiya and Sarpanch. He stated that the quarrel took place Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

after the panchayati, when the panches had moved 30-40 steps

ahead. He stated that all the four accused persons had hurled

countless number of lathis and when Qyamuddin Mian, Hadis

Mian and Suleman Mian and he tried to intervene, he also

sustained injuries on his head. The injury was also caused to

Qyamuddin on his head and Hadis Mian on his right hand. He

further stated that because of the assault, blood had not fallen on

the soil. He admitted that the accused Ibrahim Mian, Qurban

Mian and Hafiz Mian had also sustained injuries and they were

arrested by the police from the hospital itself. However, Khalil

Mian managed to escape. He stated that Habib Mian and Sabib

Mian were taken to the hospital, which is at a distance of one

and a half kilometers from the place of occurrence on a cot. He

stated that blood had fallen on the cloth and the cot and the

clothes were handed over to the police. He denied the defence

suggestion that the accused persons were not being allowed to

enter their house. He stated that Habib Mian died three days

after the occurrence in the hospital at Patna. He stated that the

body of Habib Mian was brought to Baniyapur Police Station

from where it was sent to Chapra for postmortem examination.

He further denied the defence suggestion that the members of

the prosecution party were themselves aggressors and no Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

occurrence as alleged had taken place. He further denied the

defence suggestion that the members of the prosecution party

had assaulted the accused persons.

17. Rani Bibi (P.W. 1), the daughter-in-law of

the deceased Sabib Mian, deposed that while she was cooking

meal, after hearing hulla, she came out of her house and reached

the place of panchayati. She saw that Khalil Mian, Ibrahim,

Qurban and Hafiz Mian were assaulting Sabib Mian and

Nasruddin Mian with lathi. She stated that Sabib Mian died on

the spot and Nasruddin Mian received injury on his head. The

injured persons were taken to Baniyapur hospital, where Sabib

was declared dead by the doctor and Nasruddin Mian was

treated. She also stated that the accused persons assaulted Habib

Mian too, who died two days after the incident at Chapra during

treatment. She stated that Sabib was assaulted by Ibrahim. She

identified the accused persons.

18. In cross-examination, she admitted that for

the occurrence of the same date, the accused persons have also

instituted a criminal case against her family members and the

accused persons were also admitted to Baniyapur Hospital for

treatment and were arrested by the police from the hospital

itself. She stated that Suleman, Babujan and Qyamuddin had Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

also sustained injuries and were admitted to the hospital. She

admitted that the document of panchayati was prepared. She

stated that the deceased had sustained injuries from their head to

their toes. She further stated that Habib Mian died in hospital at

Patna during treatment from where his body was brought to her

door and the police were informed who prepared an inquest

report at her door and took the body to the police station.

19. Gulam Mustafa (P.W. 2) has been declared

hostile by the court at the request of the prosecution. He

deposed that he reached the place of occurrence after the

occurrence. He was cross-examined by the prosecution.

However, nothing relevant could be found in his cross-

examination.

20. Sayra Khatoon (P.W. 3) wife of the

deceased Sabib Mian stated in her deposition that she was at her

door when the panchayati was going on over cutting of branch

of pakri tree. The accused persons refused to accept the decision

taken in the panchayati. They came out with lathi from their

houses and assaulted Sabib Mian and Habib Mian intending to

kill them. They also assaulted Hadis (not examined), Nasruddin,

Qyamuddin (not examined) and Babujan (not examined). All the

injured persons were taken to Baniyapur Hospital where Sabib Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

Mian was declared dead and Habib Mian was referred to Chapra

Sadar Hospital and from thereto to Patna where he died during

treatment. She stated that she put her thumb impression over the

oral statement of the informant recorded by the police and

identified the accused persons.

21. In cross-examination, she expressed her

ignorance about Baniyapur P.S. Case No. 275 of 2013 lodged by

Ibrahim Mian against Hadis Mian, Qyamuddin Mian and

Suleman Mian. She stated that at the time of cutting off the

branch of pakri tree, no quarrel had taken place, but the quarrel

took place after 2-3 days. She further stated that she was present

at the place of occurrence from before and Basudeo, Master and

Gama were the panches. She further stated that no blood had

fallen on the soil at the place of occurrence. She stated that the

police took away the branch of the pakri tree from her door. She

stated that the accused persons had got admitted to the hospital

after inflicting injuries to themselves. They had assaulted her

husband and her son with lathi, as a result of which, they

sustained injuries. She stated that it is not a fact that they are not

allowing the accused persons to live in their houses and a 107

CrPC proceeding is also going on. She further stated no outsider

is a witness in the present case.

Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

22. Dr. Kumar Ravi Ranjan (P.W. 7) was

posted at Baniyapur Referral Hospital as Medical Officer on

23.11.2013. He deposed that on that day, at 10.20 AM, he

examined Qyamuddin Mian son of Habib Mian and found one

lacerated wound on the left parietal region measuring 2½"x½"x

scalp deep on his person. He was advised x-ray of the skull. He

stated that the injury was caused by a hard and blunt substance

within 8 hours. However, the opinion regarding the nature of the

injury was kept reserved awaiting an x-ray report. He also

examined the informant Nasruddin Mian on the same day at

10.25 AM and found one bruise on his right shoulder measuring

2"x2" and a lacerated wound on the right parietal region on

scalp 2½"x½"x½". In respect of the injuries sustained by the

informant, he stated that those were simple in nature. He also

examined Hadis Mian on 23.11.2013 at 10.30 AM and found

swelling with tenderness on right hand 2"x2" and swelling on

occipital region of scalp 1"x1". He opined that the injury on the

right hand was simple in nature and for the injury on the scalp,

the opinion was reserved till receipt of the x-ray report. He

proved the injury reports of the aforesaid injured persons, which

were marked as Exhibit- 2, 2/1 and 2/2 respectively.

23. In cross-examination, he stated that all the Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

injured were examined based on police requisition. He admitted

that he did not obtain the x-ray report of the aforesaid injured

persons. Hence, he did not give any supplementary injury

report.

24. Dr. Shailendra Kumar Singh (P.W. 6) was

posted at Sadar Hospital, Chapra as Medical Officer on

23.11.2013. He deposed that on 23.11.2013, at 3.10 PM, he

conducted the postmortem examination on the body of Habib

Mian and found swelling over the left parietal region of his

scalp. He stated that rigor mortis was present and blood was

coming out of his nose, ear and mouth. According to him, the

cause of death of Sabib Mian was shock and haemorrhage due

to the above-mentioned head injury caused by hard and blunt

substance and the time elapsed since death was within 12 to 24

hours of postmortem examination. He proved his postmortem

examination report, which was marked as Exhibit- 1/1.

25. In cross-examination, he admitted that

except for the head injury not even an abrasion was found on the

body of the deceased.

26. Dr. Krishna Mohan (P.W. 5) was also

posted as a Medical Officer in Sadar Hospital, Chapra on

27.11.2013. On that day, at 8.30 AM, he held a postmortem Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

examination on the body of the deceased Habib Mian and found

the following ante-mortem injuries on the body of the

deceased:-

(i) Lacerated wound 2"x bone deep x½" over the

vertex of the skull.

(ii) 4" boggy swelling over the head.

He opined that the cause of death was the head

injury caused by a hard and blunt substance leading to

haemorrhage and shock. He stated that time elapsed since death

was within 12 to 14 hours. He proved the postmortem

examination report of the deceased Habib Mian, which was

marked as Exhibit-1.

27. In cross-examination, he stated that the body

of the deceased was identified by the constable (not examined).

According to him, injury no. 2 was a haematoma. He admitted

that he could notice only two external ante-mortem injuries on

the body of the deceased.

28. Rakesh Kumar (P.W. 8) is the investigating

officer of the case. He stated in his deposition that on

23.11.2013, he was posted at Baniyapur Police Station as a Sub-

Inspector of Police. After receiving information regarding the

incident, he proceeded to the Primary Health Centre, Baniyapur Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

and recorded the fardbeyan of Nasruddin Mian. After the

recording of the fardbeyan, it was explained to him and he

obtained a thumb impression of Nasruddin Mian and Sayra

Khatoon over the same. He made an endorsement over the

fardbeyan. He stated that the formal FIR and pagination over it

was made by the then SHO of the Police Station, namely,

Govind Rajbanshi. He proved the fardbeyan, which was marked

as Exhibit-3. He also proved the formal FIR in the writing of the

then SHO of Baniyapur Police Station, Govind Rajbanshi,

which was marked as Exhibit-4. He stated that since he was

handed over the investigation of the case, he prepared the

inquest report of the deceased Sabib Mian over which he

obtained the signature of Suleman Mian and thumb impression

of Sayra Khatoon. He proved the inquest report of Sabib Mian,

which was marked as Exhibit-5. He deposed that on 26.11.2013,

at 9.30 AM, the body of the deceased Habib Mian was brought

to the police station in an ambulance and an inquest report was

prepared by the then SHO Bhartendu Sharad, which was

testified by Suleman Mian and Nasruddin Mian. He identified

the writing of Bhartendu Sharad and Suleman Mian and proved

the inquest report of Habib Mian, which was marked as Exhibit-

5/1. He stated that he sent the body of the two deceased Sabib Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

Mian and Habib Mian to Chapra Sadar Hospital for postmortem

examination, recorded the further statement of the informant

and apprehended the accused Ibrahim Mian, Qurban Mian and

Hafiz Mian from the hospital. He inspected the place of

occurrence and prepared its sketch map. Thereafter, he recorded

the statements of Sayra Khatoon, Rani Bibi, Zainul Khatoon

(not examined) and Gulam Mustafa. Subsequently, he arrested

Khalil Mian. He received the injury report of Nasruddin Mian,

Qyamuddin Mian and Hadis Mian and the postmortem

examination report of the deceased Sabib Mian and Habib Mian.

After completing his investigation, he submitted a charge-sheet

against the accused persons.

29. In cross-examination, he admitted that the

accused Ibrahim Mian, Qurban Mian and Hafiz Mian were

arrested from Referral Hospital while they were undergoing

treatment on the date of occurrence at 1 PM. He further

admitted that he had not issued any injury requisition in respect

of the deceased Habib Mian, who was also taken to Referral

Hospital. He admitted that the inquest report of the deceased

Sabib Mian was prepared at 10.50 AM. He further admitted that

during the investigation, he did not receive any document

relating to panchayati. He also admitted that he did not seize Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

any branch of the pakari tree at the place of occurrence nor did

he see any branch of such tree. He further admitted that he did

not record the statement of Mukhiya and Sarpanch of the local

Gram Panchayat. He confessed that apart from the family

members of the deceased, he did not examine any other

witnesses during the investigation. He admitted that insofar as

the body of the deceased Habib Mian is concerned, he did not

record anywhere that from which hospital it had come. He did

not receive any death certificate in respect of Habib Mian from

any hospital. He contradicted Rani Bibi (P.W. 1) by stating that

she did not state in her previous statement made during the

investigation before him who assaulted whom.

30. After examination of the aforesaid

prosecution witnesses, the prosecution case was closed.

31. Thereafter, to enable the accused persons

personally to explain the circumstances appearing in the

evidence against them, the Trial Court recorded their statement

under Section 313 of the CrPC. In their respective statements

made under Section 313 of the CrPC, the accused persons

pleaded their innocence. They stated that they had abided by the

decision taken in panchayati. They further stated that they have

been implicated in the case due to enmity.

Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

32. Since the defence did not examine any

witness after the closure of the prosecution case, the Trial Court

heard the parties and passed the impugned judgment of

conviction and sentence.

33. The operative part of the impugned judgment

of the Trial Court reads as under: -

"Therefore, considering the entire evidence as discussed above, it is being clear that due to previous enmity, an altercation took place on the date of occurrence, all of the accused persons assaulted both the deceased persons by several lathi blows with common intention with intent to commit murder, on the basis of inquest report as well as postmortem report, it is also corroborated that several grievous injuries have been found on the persons of the deceased and they have been murdered by hard and blunt substance, i.e. lathi blow and it is opined by the doctors who have conducted postmortem examination of the deceased that death was caused due to haemorrhage and shock and arising out of several injuries of head. As such, the death of both the deceased persons namely: Sabib Mian and Habib Mian have been established caused by hard and blunt substances, i.e. lathi blow and these injuries have been committed by the accused persons, as supported by the eye Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

witnesses of the occurrence, though, there are minor discrepancies have been found in the evidences of the witnesses, but these are natural one and not fatal to effect the merit of the case and it is also not demolished on the basis of evidence of family members of the deceased. Considering meticulously the evidences available on record, it is also being clear that the motive and manner of the occurrence have also been proved by the prosecution witnesses and on the basis of evidences available on the record, it is also established that all of the accused persons have actively participated in commission of offence, i.e. murder of the deceased Sabib Mian and Habib Mian with common intention of all of them.

Therefore, on the basis of evidences oral and documentary brought by the prosecution on the record as analysed above it is held that the prosecution could have been able to prove the charges of murder of the deceased persons levelled against the accused persons beyond all reasonable doubts. So far as the charges levelled against the accused persons U/s 307, 325 and 323 of the I.P.C. are concerned, it is supported by the witnesses that at the time of occurrence the informant and others tried to intervene and rescue their father and uncle, the accused persons also assaulted them through Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

which they sustained several injuries on their persons of each other. PW.-1, P.W.-3, P.W.-4 and P.W.-5 have supported and stated during their testimony that they tried to intervene, they also sustained injuries even on head also. But from perusal of entire evidences, it is also apparent that the accused persons have also received injuries and they were admitted in the hospital for treatment, from where, they were arrested, which indicates that there was free fighting committed between the parties, whereas according to provision of section 307 of the I.P.C., it is prescribed that who ever does any act with such intention or knowledge and under such circumstances that if he by that act, causes death, he would be guilty of murder shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is herein before and according to section 325 of the I.P.C it is prescribed that who-ever voluntarily causes grievous hurt shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine and the said grievous hurt, is prescribed U/s 320 of the I.P.C as Emasculation, permanent privation of the sight Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

of either eye, permanent privation of the hearing of either ear, privation of any member or joint. Destruction or permanent imposing of the powers of any member or joint, permanent dis-figuration of the head or face, fracture or dislocation of bone or tooth, any hurt which endanger life or which causes sufferer to be during the space of 20 days in severe bodily pain or unable to follow his ordinary pursuit."

In view of the required ingredients of the above mentioned provision of law, I have considered the evidences produced on behalf of persecution regarding aforesaid charges, levelled against the accused persons about which, the victim-cum-informant and other witnesses have supported that Qyamuddin Mian, Hadis Mian, Suleman Mian and Nasruddin Mian sustained injury on their persons by lathi blow, caused by accused persons and they have also stated that due to said assault, their head was also injured but the medical officer, who has examined the said injured persons has made his statement as P.W.-7 that injuries found on the person of the injured, caused by hard and blunt substances and most of the injuries have been found simple in nature and it has been suggested by him to get x-ray, but it was not produced by the informant and from perusal of the injury reports, as Ext. 2, 2/1, 2/2, it is mentioned that Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

about the some injuries found on the person of the injured persons, x-ray has been suggested and most of the injuries have been found simple in nature. No any injury has been corroborated by the reliable and authentic evidence to show the grievous in nature and also no assault allegedly committed by the accused persons over these injured persons are sufficient to establish that these are committed with intention or knowledge, caused death of the injured persons amounts to establish the same in purview of the provision of Section 307 of I.P.C. rather on the basis of evidences available on record, I come to the conclusion that the injured persons have received simple injuries on their person by the act committed by the accused persons.

Therefore, on the basis of evidences oral and documentary brought by the prosecution on the record, as discussed above, I am of the opinion that the prosecution has miserably failed to prove the charges of sections 307, 325 of the I.P.C., levelled against them beyond all reasonable doubts. As such, the accused persons are acquitted of the charges of sections 307 and 325 of the I.P.C., whereas on meticulous consideration of the evidences, I also come to the conclusion that the prosecution could have able to prove the charge of section 323/34 of the I.P.C., levelled Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

against the accused persons beyond all reasonable doubts. It is therefore, ordered that the accused persons, namely; Hafiz Mian, Khalil Mian, Ibrahim Mian and Qurban Mian are held guilty for the offence punishable U/s 323 and 302/34 of the I.P.C."

(Emphasis supplied)

34. Being aggrieved by the impugned judgment

of conviction and order of sentence, the appellants have

preferred the present appeal.

35. Mr. Ajay Kumar Thakur, learned counsel for

the appellants submitted that the Trial Court has grossly erred in

appreciating the evidence on record. He contended that the

incident took place immediately after the panchayati in which

large persons had assembled. However, no independent witness

was examined on behalf of the prosecution during the trial. All

the witnesses examined on behalf of the prosecution are family

members of the deceased. He submitted that Sayra Khatoon

(P.W.3) and Nasruddin Mian (P.W. 4) stated in their deposition

that one Basudeo, Shyam Ji Master and Gama were the panches

who had decided the dispute between the parties. However,

none of the panches was examined on behalf of the prosecution.

He contended that the injured Qyamuddin Mian, Suleman Mian,

Hadis Mian and Babujan Mian have also not been examined by Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

the prosecution during the trial. He contended that they were the

material witnesses and their withholdment by the prosecution

has caused prejudice to the accused persons. He further

contended that the two constables, who took the body of the two

deceased to Chapra Sadar Hospital have also not been examined

by the prosecution and no explanation has been given by the

prosecution for their non-examination. He argued that the

prosecution has even failed to prove the motive for the

occurrence. He stated that neither the cutting of any branch of

the pakari tree has been proved by the investigating officer nor

he had seized any branch of the pakari tree from the place of

occurrence although he inspected the place of occurrence on the

date of occurrence itself. He further argued that medical

evidence totally belies the case of the prosecution. According to

him, the prosecution alleged that all the four accused persons

being variously armed with lathi and danda mercilessly and

indiscriminately assaulted the two deceased but the postmortem

reports of the two deceased reflect that the deceased Sabib Mian

had sustained only one ante-mortem injury and the deceased

Habib Mian had sustained two ante-mortem injuries out of

which one was boggy swelling. He contended that the witnesses

have admitted during trial that there was a cross case. They have Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

also admitted that all the accused persons except Khalil Mian

were arrested from the Referral Hospital, Baniyapur on the date

of occurrence itself while undergoing treatment. He contended

that if a quarrel had taken place in panchayati and the accused

persons were also injured and were undergoing treatment in

hospital and a case was instituted against the members of the

prosecution party, it was for the prosecution to explain under

what circumstances they sustained injuries. He contended that

the suppression of the facts regarding the incident should have

been taken into consideration by the Trial Court and the accused

persons should have been given the benefit of doubt. Lastly, he

contended that the death of Habib Mian has occurred in

mysterious circumstances. The prosecution alleges that he was

first taken to Baniyapur Referral Hospital from where he was

sent to Chapra Sadar Hospital after providing him first aid and,

thereafter, to Patna where he died during treatment. However,

neither the medical report regarding the treatment provided to

the two deceased at Baniyapur Referral Hospital nor the medical

report regarding the treatment to the deceased Habib Mian at

Chapra Sadar Hospital nor any specialized centre in Patna has

been proved nor the death certificate issued by any hospital has

been proved by the prosecution during the trial. It is not known Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

where and under what circumstances he died. He contended that

there is conflict in the evidence as to whether his body was

brought first to Baniyapur Police Station in an ambulance on

27.11.2013 or at his house from where the police took the body

for postmortem examination. The prosecution has withheld all

the evidence of his treatment provided at various places for

which no explanation has been given.

36. On the other hand, Mr. Dilip Kumar Sinha,

learned Additional Public Prosecutor appearing for the State

submitted that the Trial Court has considered all the relevant

facts of the case for arriving at a rightful conclusion. He

contended that there might be minor variations in the statement

of the witnesses, which were quite natural in the given

circumstances. He contended that right from the beginning the

prosecution is consistent about the name of the accused persons,

the weapon used for the offence, the place of occurrence and the

manner of assault. He argued that the investigating officer might

have committed some error during the investigation, but that

would not be fatal to the prosecution case. According to him,

Rani Bibi (P.W.1), Sayra Khatoon (P.W.3) and Nasruddin Mian

(P.W.4) have fully supported the prosecution case. Right from

the beginning, it is the case of the prosecution that all the Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

accused persons came with lathi and danda from their houses

and indiscriminately assaulted the two deceased and the other

injured persons. He further contended that the medical evidence

fully corroborates the prosecution case.

37. We have given our anxious consideration to

the rival submissions and have carefully perused the evidence

on record.

38. From the cross-examination of the witnesses,

it would be evident that for the same occurrence a counter case

was instituted. The prosecution witnesses have admitted that the

appellants had also sustained injuries for which they were being

treated at the Baniyapur Referral Hospital from where Ibrahim

Mian, Qurban Mian and Hafiz Mian were arrested by the

investigating officer of the case. On appreciating the evidence,

the Trial Court also held that the accused persons did sustain

injuries in the incident and while being treated in hospital, they

were arrested by the police. Considering that there was a free

fight between the parties, the Trial Court acquitted the

appellants of the charges under Sections 307 and 325 of the IPC.

The prosecution has not explained how the accused persons

sustained injuries in the incident for which they were admitted

to Baniyapur Referral Hospital.

Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

39. The investigating officer did not seize the

weapon used in the offence, though three of the accused persons

were arrested on the date of occurrence itself. He has not

produced any material exhibit like blood-stained clothes of the

two deceased and the blood-stained cots on which they were

taken to the hospital during the trial. On the point of preparation

of documents after panchayati, P.W. 1 and P.W. 4 have given

conflicting evidence. P.W. 1 states that after panchayati, the

decision taken in the panchayati was prepared in writing

whereas P.W. 4 states that no such document was prepared. The

investigating officer did not investigate the case on this point.

He has simply deposed that he did not receive any document of

panchayati. He stated that he did not seize any branch of the

pakri tree whereas P.W. 3 stated in her deposition that the police

seized the branch of the pakri tree from her door. The

investigating officer admitted that he did not notice any cut

mark on the pakri tree in question.

40. P.W. 4 has admitted in his deposition that the

accused persons also filed a case against the members of the

prosecution party in which they have been granted bail. The

investigating officer has not stated anything about the injury or

the case lodged by the accused side.

Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

41. In a situation like this, it was incumbent

upon the investigating officer to find out the truth and to present

all the relevant facts before the court.

42. Unfortunately, the investigating officer has

failed to discharge the obligation. The fact that FIR was lodged

by the accused concerning the same occurrence, the failure of

the police to disclose the outcome of the FIR coupled with the

fact that the accused were also admitted to the same hospital

where the injured members of the prosecution party were being

treated, but their injury report was not brought on record and

suppressed by the prosecution creates suspicion

43. In the case of a defective investigation, the

Court has to be circumspect in evaluating the evidence. In Ram

Bali vs. State of Uttar Pradesh, since reported in (2004) 10

SCC 598, the judgment in Karnel Singh vs. State of MP, since

reported in (1995) 5 SCC 518 was reiterated by the Supreme

Court and it was observed that "In the case of a defective

investigation the court has to be circumspect in evaluating the

evidence. But it would not be right in acquitting an accused

person solely on account of the defect; to do so would

tantamount to playing into the hands of the investigating officer

if the investigation is designedly defective." Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

44. We have seen that all the witnesses examined

on behalf of the prosecution except the official witnesses are

related to each other. True it is that merely being relatives of the

deceased or the injured is no ground to doubt the testimony of

the witnesses. However, evidence of such witnesses calls for a

greater degree of care and caution in its analysis.

45. It would be evident from the evidence of

P.W. 3 and P.W. 4 that in the panchayati Gama, Shyam Ji Master

and Basudeo were the panches. According to the prosecution

witnesses, immediately after the panchayati was over and

panches moved 30-40 steps ahead, the incident took place.

Under such circumstances, the investigating officer ought to

have examined the aforesaid panches to find out the genesis of

the occurrence. Not only that the panches were not examined by

the investigating officer, but no person other than the family

members of the two deceased was also examined by the

investigating officer during the investigation. Likewise, during

the trial also no independent witness other than the family

members of the two deceased was examined on behalf of the

prosecution. From the evidence of the prosecution witnesses, it

is clear that at the time of the incident, independent witnesses

were present at the place of occurrence. They must have seen Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

the entire episode. They would have certainly revealed about the

genesis and manner of occurrence. In absence of any

corroboration of the prosecution case from independent sources,

casts a duty upon the Court to be circumspect in evaluating

other evidence.

46. Even the injured brothers of the informant

Suleman Mian and Babujan Mian and cousin Qyamuddin did

not turn up to adduce evidence during the trial. There is no

explanation as to why they were not examined during the trial

by the prosecution.

47. Be that as it may, since non-examination of

independent witnesses or some injured witnesses in itself is not

fatal to the case of the prosecution when other prosecution

witnesses are found to be trustworthy and reliable, we would

analyze the other evidence adduced before the Trial Court

hereinafter.

48. When we look at the evidence led during the

trial, we find that Nasruddin Mian (P.W. 4), who is the

informant of the case has made an omnibus and general

allegation in his fardbeyan given to the police that all the four

accused persons being variously armed with lathi and danda

indiscriminately assaulted both the deceased, namely, Sabib Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

Mian and Habib Mian and when he and his brothers Suleman

Mian and Babujan Mian and his cousin Qyamuddin Mian tried

to intervene, they assaulted and injured them too. However,

while deposing before the court, he first says that all the four

accused persons came with lathi and started assaulting them and

then he says Khalil Mian assaulted Sabib Mian on his head and

Ibrahim also assaulted him. Thereafter, he says that Qurban

Mian and Hafiz Mian assaulted Habib Mian. He has materially

improved his version during the trial in order to corroborate the

ante-mortem injuries found on the person of the two deceased.

In the FIR, it is not mentioned who assaulted whom. The

allegation is general and omnibus that all the four assaulted the

two deceased with lathi. Further, in the FIR, he has stated that

when he and his two brothers and cousin intervened to rescue

Sabib Mian and Habib Mian, they were also assaulted, but in

deposition, he changed his version by saying that he and his

brothers Suleman and Babujan and cousin Qyamuddin also

sustained injuries.

49. Indeed, an FIR can never represent the entire

evidence. It need not contain an exhaustive account of the

incident and minor omissions have to be ignored, where

prosecution evidence is otherwise found reliable. However, Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

when the FIR was promptly lodged and detailed manner of

occurrence was narrated in the FIR, but during the trial, an

attempt is made by the informant to selectively change the

manner of occurrence to suit the findings of the doctor in

postmortem examination, it would certainly affect the testimony

of the witness. The graphic detail given by the informant in his

deposition regarding the manner of assault by the accused

persons on the deceased and the injured does not inspire

confidence. Furthermore, P.W. 1 and P.W. 3 have not

corroborated the graphic detail given by P.W. 4 regarding the

assault upon the two deceased. They too claim themselves to be

the eyewitnesses to the occurrence.

50. Rani Bibi (P.W. 1) stated in her deposition

that all the four accused assaulted Sabib Mian and Nasruddin

Mian with lathi and danda, as a result of which, the father of the

informant, namely, Sabib Mian died and Nasruddin Mian was

taken to Baniyapur Referral Hospital for treatment. She stated

that both the deceased sustained injuries from their head to their

toes, which would mean from front to back and from one side

body to another. She stated that Habib Mian sustained an injury

caused by Ibrahim, who assaulted him with lathi. Similarly,

Sayra Khatoon (P.W. 3) has stated in her deposition that all the Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

four accused came with lathi and indiscriminately assaulted

both Sabib and Habib. They also assaulted Nasruddin,

Qyamuddin and Babujan.

51. Another important aspect of the matter is that

according to the testimony of the prosecution witnesses both

Sabib Mian and Habib Mian were first taken to Baniyapur

Referral Hospital after they had sustained injuries on 23.11.2013

in the morning at about 10:00 AM where Sabib Mian was

declared dead after examination and Habib Mian was referred to

Chapra Sadar Hospital after giving him first aid and, from

Chapra Sadar Hospital, he was taken to Patna where he died

during treatment after three days. The prosecution, however,

failed to produce any chit of paper to show that the deceased

Habib Mian was ever treated at Baniyapur Referral Hospital or

Chapra Sadar Hospital or any hospital in Patna. The prosecution

has also not examined any doctor in support of its claim that the

deceased Habib Mian was ever treated either at Baniyapur or

Chapra or Patna in any hospital. Thus, it is left to guesswork as

to whether he sustained an injury in the incident and, if yes,

what was the nature of the injury. The investigating officer has

not investigated the case on this point. There is also no clarity as

to how, when and where Habib Mian died. The prosecution Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

seems to be interested more in hiding the facts from the court

than revealing them.

52. Furthermore, the informant (P.W. 4) stated in

his deposition that Habib Mian died at Patna after three days

and his dead body was taken to the police station by him and the

police officer saw the body at 08:00 PM whereafter the body

was taken to Chapra for postmortem examination. Similarly,

Rakesh Kumar (P.W. 8) stated in his deposition that on

26.11.2013 at 9:30 PM, the body of Habib Mian was brought to

the police station in an ambulance and the inquest report was

prepared by the then SHO of Baniyapur Police Station, Mr.

Bhartendu Sharad. The inquest report (Exhibit-5/1) of Habib

Mian would show that it was prepared at 9:30 PM on

26.11.2013 and the informant and one Suleman Mian are the

witnesses to the inquest report of Habib Mian. But, Rani Bibi

(P.W. 1) stated in her deposition that the dead body of Habib

was brought at her door from Patna. Thereafter, information was

sent to the police in this regard and the police came and

prepared an inquest report and took the dead body in their

possession. Thus, we find that there is an apparent contradiction

between the testimony of P.W. 4 and P.W. 1. It is not known

whether the body of the deceased was brought first at the police Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

station or the door of the house of P.W. 1. It is also not known

where the inquest report of the deceased Habib was prepared.

One of the witnesses to the inquest of Habib and Sabib, namely,

Suleman Mian has not been examined during the trial and there

is no explanation for his non-examination.

53. It is noteworthy that right from the beginning

the case of the prosecution is that all the four accused persons

indiscriminately assaulted both the deceased, namely, Sabib

Mian and Habib Mian and they also assaulted the injured

Qyamuddin Mian, Nasruddin Mian, Suleman Mian and Babujan

Mian, but the postmortem examination report of the deceased

Sabib Mian would suggest that he had sustained only one ante-

mortem injury on his head, i.e., swelling over the left parietal

region of scalp measuring 3"x3" and the postmortem report of

the deceased Habib Mian would suggest that he had sustained

only two ante-mortem injuries on his head out of which one was

boggy swelling over the head.

54. If all four accused persons had assaulted

indiscriminately and repeatedly with lahti to both the deceased

persons, the ante-mortem injuries caused on their person would

have certainly been many more. The ocular testimony of the

witnesses for the prosecution is inconsistent with the medical Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

evidence.

55. It is a fundamental defect in the prosecution

case and it has not been reasonably explained by the

prosecution. The witnesses examined during the trial have stated

that both the deceased sustained injuries all over their bodies

from their head to their toes, but in the postmortem examination,

the doctor did not find any antemortem injury on the bodies of

the deceased except the injury over their head. Thus, there is an

apparent irreconcilable inconsistency between the ocular

testimony of the witnesses and the medical evidence.

56. The number of ante-mortem injuries found

on the person of the two deceased would clearly demonstrate

that at least all the four accused must not have assaulted them.

Given the testimony of the witnesses, it is extremely difficult for

the Court to come to a definite conclusion as to who were the

perpetrators of the offence and who have been falsely implicated

in the case.

57. In the cases of enmity, sometimes innocent

persons are implicated along with guilty persons. In such cases,

the witnesses exaggerate the culpability of the actual assailants

and extend the participation of some innocent persons. In such

cases, the Court must try to separate the grain from the chaff and Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

after scrutiny with proper care and caution conclude as to who

out of the accused persons can be considered to have actually

committed the offence.

58. However, in cases where it is not feasible to

separate truth from falsehood because grain and chaff are so

inextricably mixed up that separation would amount to a virtual

reconstruction of a new case, the evidence has to be discarded in

totality.

59. In Balka Singh vs. State of Punjab, since

reported in AIR 1975 SC 1962, the Supreme Court observed: -

"It is true that, as laid down by this Court in Zwinglee Ariel v. State of M.P., AIR 1954 SC 15, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

apply."

60. In Ram Udgar Singh vs. State of Bihar,

since reported in (2004) 10 SCC 443, the Supreme Court

observed: -

"... Where it is not feasible to separate the truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. ..."

61. It is reiterated that in the present case, it is

not possible to separate the grain from the chaff. Hence, the

Trial Court ought to have given the benefit of doubt to the

accused persons.

62. Thus, in the facts and circumstances of the

case, we are of the view that the Trial Court was not justified in

convicting the appellants under Sections 302/34 and 323 of the

IPC.

63. In view of the foregoing discussions, we are

persuaded to conclude that the impugned judgment and order Patna High Court CR. APP (DB) No.406 of 2016 dt.17-08-2021

cannot be legally sustained. Consequently, the impugned

judgment of conviction dated 14.03.2016 and the order of

sentence dated 17.03.2016 passed by the learned Additional

Sessions Judge-VI, Saran at Chapra in Sessions Trial No.209 of

2014 arising out of Baniyapur P.S. Case No.274 of 2013 are,

hereby, set aside.

64. The appellants are acquitted of the charges

levelled under Sections 302/34 and 323 of the IPC. Appellant

no. 2, namely, Khalil Mian @ Khalil Miya, who is on bail, is

discharged from the liabilities of bail bonds. The other three

appellants, namely, Hafiz Mian @ Hafiz Miya, Ibrahim Mian @

Ibrahim Miya and Qurban Mian @ Kurban Miya, who are in

custody, are directed to be released forthwith, if not required in

any other case.

65. The appeal stands allowed.

                                            (Ashwani Kumar Singh, J)


                                                ( Arvind Srivastava, J)


kanchan/rohit
AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          17.08.2021
Transmission Date       17.08.2021