Master Md. Shafiullah And Ors vs The State Of Bihar
2023 Latest Caselaw 4989 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL APPEAL (DB) No.900 of 2017
           Arising Out of PS. Case No.-91 Year-2010 Thana- TARAIYA District- Saran
     ======================================================

Md. Inayatullah @ Sonu @ Md. Enayatullaha S/o Sher Mohammad R/o Village- Rajwara, P.S. Taraiya, District- Saran.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 761 of 2017 Arising Out of PS. Case No.-91 Year-2010 Thana- TARAIYA District- Saran ======================================================

1. Master Md. Shafiullah and Ors son of Late Hadish

2. Md. Alauddin son of Md. Israil @ Israil

3. Nasim Akhtar son of Sahadat Hussain

4. Md. Mojibullah son of Abdul Hafiz All are resident of Village- Rajwara, P.S. Taraiya, District- Saran.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 827 of 2017 Arising Out of PS. Case No.-91 Year-2010 Thana- TARAIYA District- Saran ====================================================== Wasim Akhtar @ Tunna son of Abdul Majid resident of Village Rajwara, P.S. Taraiya, District Chapra.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 901 of 2017 Arising Out of PS. Case No.-91 Year-2010 Thana- TARAIYA District- Saran ====================================================== Md. Ashif Ali @ Munna Son of Late Md. Hasid, Resident of Village- Rajwara, P.S.- Taraiya, District- Saran. Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 900 of 2017) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Ms. Kiran Kumari, Advocate Mr. Md. Imteyaz Ahmad, Advocate Mr. Ritwik Thakur, Advocate Ms. Vaishnavi Singh, Advocate Mr. Anuj Kumar, Advocate For the Respondent/s : Mr. Ajay Mishra, APP For the Informant : Mr. Vishwanath Prasad Singh, Sr. Advocate Mr. Sanjay Kumar Singh, Advocate Mr. Rajesh Kumar, Advocate (In CRIMINAL APPEAL (DB) No. 761 of 2017) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Ms. Kiran Kumari, Advocate Mr. Md. Imteyaz Ahmad, Advocate Mr. Ritwik Thakur, Advocate Ms. Vaishnavi Singh, Advocate Mr. Anuj Kumar, Advocate For the Respondent/s : Mr. Ajay Mishra, APP For the Informant : Mr. Vishwanath Prasad Singh, Sr. Advocate Mr. Sanjay Kumar Singh, Advocate Mr. Rajesh Kumar, Advocate (In CRIMINAL APPEAL (DB) No. 827 of 2017) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Ms. Kiran Kumari, Advocate Mr. Md. Imteyaz Ahmad, Advocate Mr. Ritwik Thakur, Advocate Ms. Vaishnavi Singh, Advocate Mr. Anuj Kumar, Advocate For the Respondent/s : Mr. Ajay Mishra, APP For the Informant : Mr. Vishwanath Prasad Singh, Sr. Advocate Mr. Sanjay Kumar Singh, Advocate Mr. Rajesh Kumar, Advocate (In CRIMINAL APPEAL (DB) No. 901 of 2017) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Ms. Kiran Kumari, Advocate Mr. Md. Imteyaz Ahmad, Advocate Mr. Ritwik Thakur, Advocate Ms. Vaishnavi Singh, Advocate Mr. Anuj Kumar, Advocate For the Respondent/s : Mr. Ajay Mishra, APP For the Informant : Mr. Vishwanath Prasad Singh, Sr. Advocate Mr. Sanjay Kumar Singh, Advocate Mr. Rajesh Kumar, Advocate ====================================================== Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE SHAILENDRA SINGH CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 07 -10-2023

Heard Mr. Ajay Kumar Thakur, learned

Advocate for the appellants and Mr. Vishwanath Prasad

Singh, learned Senior Advocate for the informant. The

State is represented by Mr. Ajay Mishra, learned APP.

2. All the four appeals viz. Cr. App (DB) No.

900 of 2017 (Md. Inayatullah @ Sonu @ Md.

Enayatullaha); Cr. App (DB) No. 761 of 2017 (Master

Md. Shafiullah, Md. Alauddin, Nasim Akhtar and Md.

Mojibullah); Cr. App (DB) No. 827 of 2017 (Wasim

Akhtar @ Tunna) and Cr. App (DB) No. 901 of 2017

(Md. Ashif Ali @ Munna) have been heard together and

are being disposed of by this common judgment.

3. In all, seven appellants, who have been

convicted under Sections 148, 307, 302/149 of the

Indian Penal Code have assailed the judgment and order

of conviction and sentence passed by the learned VIth Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

Additional Sessions Judge, Saran at Chapra in Sessions

Trial No. 716/738/2011, arising out of Taraiya P.S.

Case No. 91 of 2010. All of them have been sentenced

to undergo imprisonment of life, to pay a fine of Rs.

10,000/- each and in default of payment of fine to suffer

R.I. for six months for the offence under Section

302/149 IPC; R.I. for seven years for the offence under

Section 307/149 IPC and R.I. for two years for the

offence under Section 148 of the IPC. 5. The sentences

have been ordered to run concurrently.

4. Before proceeding to analyze the evidence

and the respective contentions of the appellants, this

Court was informed that Master Md. Shafiullah, son of

Late Hadish had died during the pendency of this appeal.

5. A report was called for regarding the death

of appellant Master Md. Shafiullah in Cr. App (DB) No.

761 of 2017, which fact stands confirmed.

6. As such, the appeal of Late Master Md.

Shafiullah abates in view of the provisions contained in Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

Section 394 of the Code of Criminal Procedure.

7. The FIR in this case was registered by one

Md. Jakaullah (P.W. 11) before the A.S.I., M.M. Ram of

Pirbahore Police Station (Camp P.M.C.H., Patna) on

01.09.2010 at about 10:00 A.M. in which it has been

alleged that on the previous day i.e. on 31.08.2010 at

about 07:45 P.M., while one Md. Raja, aged about eight

years, son of Md. Naushad was singing in front of his

darwaja, the appellants and several others came and

started assaulting him. Seeing this, Irshad and Irfan

(P.Ws. 2 and 5 respectively) came to his rescue. Then, it

has been alleged that Late Master Md. Shafiullah

exhorted the accused persons to kill both Irshad and

Irfan. On such call by Late Shafiullah, all the accused

persons including the appellants started assaulting

Irshad and Irfan by means of lathi, danda etc. As a

result of the assault, Irfan was injured in his head and

started bleeding profusely. In the meantime, one Md.

Sanaullah also arrived for their rescue, when he too was Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

assaulted by the accused persons. Appellant/Md.

Inayatullah is then said to have given a "bhujali" blow in

the stomach of Sanaullah as a result of which he was

severely injured and his intestines came out. By this

time, one Md. Nurul Hoda also arrived at the scene of

occurrence and tried to save Sanaullah, but again, on

the orders of Late Md. Shafiullah, appellant Ashif Ali @

Munna assaulted him by means of a sword on his right

hand, as a result of which, Md. Nurul Hoda also got

severely injured.

8. Hearing all this palaver, Sakil (P.W. 6),

Maqsud Ahmad (P.W. 3) and Parvej (not examined)

arrived at the place of occurrence, who too were

assaulted by all the accused persons. After the

occurrence, it has been alleged, the victims were taken

to P.M.C.H. where during the course of treatment, Md.

Sanaullah died. Md. Nurul Hoda also died on 01.09.2010

in the morning. Md. Sakil (P.W. 6) and Chand Alam

(P.W. 1) were treated at Rajeshwar Hospital, Patna, Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

whereas Maqsud Ahmad (P.W. 3) and Md. Irfan (P.W.

2) underwent treatment at Ruben Hospital, Patna.

9. The occurrence according to P.W. 11 was

witnessed by many.

10. On the basis of the aforenoted fardbeyan-

statement, Taraiya P.S. Case No. 91 of 2010 dated

01.09.2010 was registered for investigation against 13

accused persons including the appellants under sections

147, 148, 149, 323, 324, 325, 326, 307 and 302 of

the Indian Penal Code.

11. The fardbeyan was also signed by one Md.

Nurul Hoda.

12. It appears from the FIR that after recording

the fardbeyan of P.W. 11 (Md. Jakaullah), the same was

forwarded to the S.H.O. of Taraiya Police Station, where

the FIR was registered. It further appears that at

Taraiya Police Station, the information regarding the

occurrence was received at about 09:00 P.M. on

31.08.2010 only. However, the FIR, on the fardbeyan Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

being forwarded to Taraiya Police Station, was recorded

on 01.09.2010 at about 11:30 P.M.

13. It may be noted here that Md. Raja and his

father/Md. Naushad and one of the victims viz. Parvej

have not been examined at the trial.

14. It appears from the records that after

investigations, initially, charge sheet was submitted

against appellants Md. Inayatullah, Nasim Akhtar, Ashif

Ali @ Munna and one Nawajish Raza (juvenile) whereas

the investigation continued against others.

15. Subsequently, another charge sheet was

submitted against Late Master Md. Shafiullah, appellants

Alauddin, Nasim Akhtar, Muzibullah, Samsul Zoha and

Salauddin. The allegations against Md. Wajid, Md.

Khalid, Saifullah, Jasimuddin and Md. Amir were found

to be false.

16. The cases of Nawajish Raja, Samsul Zoha

and Md. Safiullah was separated and sent to the Juvenile

Justice Board for determination of their guilt. Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

17. The Trial Court after having examined

thirteen witnesses on behalf of the prosecution and five

on behalf of the defence convicted and sentenced the

appellants as aforesaid.

18. While assailing the Trial Court judgment,

Mr. Ajay Thakur, learned Advocate, who led the

arguments, submitted that the earliest version of the

case which Manoj Kumar, the Investigating Officer (P.W.

12) had received in the evening of 31.08.2010 has been

suppressed and not brought on record. He has further

submitted that even though the counter case lodged by

appellant/Md. Inayatullah was on record, the same was

not taken note of by P.W. 12 as also the Trial Court in

correct perspective.

19. Mr. Thakur has taken us to the deposition

of witnesses and has tried to build up the argument that

the place of occurrence could not be proved at all. Some

of the important witnesses have not been brought to the

witness-stand and no explanation also has been offered Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

for their non-examination. No blood or any objectionable

material was found at the place of occurrence and the

witnesses had prevaricated with respect to the source of

light for them to have identified the appellants in the

night of the occurrence.

20. There is a complete absence of any

explanation for the injuries on the side of the accused

persons, which according to Mr. Thakur, has made the

entire prosecution case unworthy of reliance. Though a

motive was introduced by the prosecution but that was

not taken to any logical conclusion.

21. In sum and substance, the argument of Mr.

Thakur is that there was a fight between the two groups

of one community, in which both sides received injuries

but unfortunately two of the persons of one particular

group died. In such an event, convicting all the

appellants under Sections 302/149 of the IPC was

neither warranted nor justified.

22. As opposed to the aforenoted contentions, Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

Mr. Vishwanath Prasad Singh, learned Senior Advocate

for the informant and Mr. Ajay Mishra, learned APP have

submitted that there are eye witnesses account of the

injured persons which cannot be ignored. No doubt,

fardbeyan was recorded in P.M.C.H., but the

endorsement on such fardbeyan clearly reflects that

since the place of occurrence fell under the territorial

jurisdiction of Taraiya Police Station, the fardbeyan was

forwarded to the Taraiya Police Station for registering

the FIR. There has not been any delay in recording of

the FIR or the same having been sent to the Chief

Judicial Magistrate, as would appear from the

endorsement of the Additional Chief Judicial Magistrate,

which is on 02.09.2010.

23. Both the learned Advocates have also

submitted that even if the motive could not be

established, that does not make the case of the

prosecution any weak. Minor contradictions in the

deposition of witnesses are bound to occur when Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

witnesses had deposed before a Court of Law sometimes

after the occurrence, especially when many persons are

involved in the act of assault. Witnesses have

categorically stated that they identified the

assailants/appellants in the solar light which was burning

at the place of occurrence. The place of occurrence has

been established to be the darwaja of Md. Naushad. The

injury reports of the accused persons clearly reflect that

those were simple in nature and therefore, non-

mentioning of such injuries would cast no doubt on the

truthfulness of the prosecution version.

24. It has been reiterated by both the learned

Advocates that two persons have been killed in the

occurrence, whereas seven persons including Md. Raja

and Parvej, who have not been examined, were injured.

Some of the female folk also have received injuries. In

this background, it has been urged that the Trial Court

judgment is perfectly justified requiring no interference.

25. It would first be necessary to see as to how Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

the case was registered at Taraiya Police Station when

the fardbeyan of P.W. 11 was recorded at Pirbahore

Police Station (Camp P.M.C.H.) at Patna.

26. From the deposition of P.W. 11 and other

witnesses as well, it is clearly reflected that after the

occurrence, leaving two of the persons severely injured,

whereas several others injured, the two deceased viz.

Sanaullah and Nurul Hoda were brought to P.M.C.H. in

the same night. Sanaullah was declared dead in no time

and Nurul Hoda died on the next day at about 10:00

A.M. at P.M.C.H. Four of the victims, who had received

serious injuries were treated at two different Hospitals at

Patna. Rest of the injured persons were treated at

Taraiya Hospital and were discharged.

27. The argument of the appellants that when

the information about the occurrence was received in the

Taraiya Police Station and P.W. 12, the investigator had

visited the Taraiya Hospital in the night of the

occurrence, the FIR should have been recorded in the Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

night of 31.08.2010 only, requires to be evaluated.

28. There is no denying that in a promptly filed

FIR, there are reduced chances of embellishment,

fabrication or distortion in memory, but for the

prosecution case to be rejected, it is always necessary to

look for the explanation or the presence of any ulterior

motive in delayed filing of the FIR. The Courts are

required to assess the effect of the delayed filing of the

FIR on the credibility of the prosecution version.

29. As early as in 1944, the Privy Council in

King Emperor vs. Khwaja Najir Ahmad (AIR 1945

P.C. 18) had observed that the receipt and recording of

information report by the police is not a condition

precedent to the setting in motion of a criminal

investigation. Nor does the statute provide that such

information report can only be made by an eye witness.

FIR under Section 154 of the Code of Criminal

Procedure is not even considered a substantive piece of

evidence but can only be used to corroborate or Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

contradict the informant's evidence in Court.

30. However, the information received first in

point of time and recorded is the basis of the case set up

by the informant. It is really useful if it is recorded

before there is time and opportunity to embellish the

accusation or before the informant's memory fades.

31. In the case at hand, the records reveal that

the occurrence took place in the night of 31.08.2010,

where some of the victims were seriously injured. Those

who were not seriously injured were treated at Taraiya

Hospital whereas those who were seriously injured were

taken to P.M.C.H. for the needful. One of the deceased

died immediately, whereas the other died on the next

day. Since many persons had been injured from one

side, it appears that no effort was made to register the

FIR in the same night at Taraiya Police Station, which is

the nearest police station.

32. Nonetheless, we find that immediately after

the death of the two deceased of this case, the FIR was Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

registered at Pirbahore Police Station (Camp P.M.C.H.).

This cannot be stated to be an unreasonable delay,

giving rise to any suspicion for the Trial Court to look for

any possible motive or the explanation for the delay or

consider its effect on the trustworthiness or otherwise of

the prosecution version.

33. There is no hard and fast rule which can be

applied to determine the effect of delay in lodging the

FIR.

34. In Ram Jag and Ors. vs. State of Uttar

Pradesh (1974) 4, SCC 201, the Supreme Court has

explained that every hour's delay is not required to be

explained and a common sense view has to be taken in

ascertaining whether the FIR was lodged after an undue

delay so as to afford enough scope for manipulating the

evidence. The Supreme Court went on to explain that

whether the delay is long enough to throw a cloud of

suspicion on the seeds of the prosecution case, it would

depend upon variety of factors which would vary from Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

case to case [also refer to the State of M.P. vs. Ratan

Singh and Ors. (2020) 12 SCC 630].

35. The investigator (P.W. 12) could have

registered the FIR in the night of 31.08.2010 but his not

having done so does not straightaway malign the FIR

registered by P.W. 11 at Patna, which was forwarded to

Taraiya Police Station on the same day but at about

11:30 in the night.

36. The argument of the appellants that the

other victims of the case were treated at Taraiya Police

Station in the night of the occurrence and that the

statement of P.W. 12(I.O.) that he had visited the

Taraiya Police Station in the night of 31.08.2010 and

had also gone to the place of occurrence along with

some of the injured persons and then not recording of

the FIR at Taraiya Police Station discredits the

prosecution version in its entirety, is not acceptable.

37. The reason for saying so is that even with

the FIR not having been registered in the night of Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

31.08.2010, there was practically no time for the injured

persons or the prosecution side to have thought about as

to who all should be made accused in this case.

38. One would not expect two of the persons so

critically injured to be left unattended for promptly

registering the FIR.

39. For all we know, P.W. 12 was not aware

about the critical health of Sanaullah and Nurul Hoda,

who had been referred to P.M.C.H. Whether they died

on way or were being treated at P.M.C.H. was not known

to him. This perhaps appears to be the reason for not

registering the FIR. True it is that the recorded

fardbeyan was forwarded to the Taraiya Police Station

through a Chowkidar, who has not been examined and

there is nothing on record to indicate that the Chowkidar

was entrusted by P.W. 12 to bring the farbeyan, but

even then, the time gap is not such which would send us

doubting about the prosecution case being false in its

entirety.

Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

40. An Investigating Officer being a Public

Servant is of course expected to conduct the

investigation fairly and while doing so he has to look for

materials available for coming to a correct conclusion.

41. In Arvind Kumar @ Nemichand and

Ors. vs. State of Rajasthan (2021) SCC online, SC

1099, the Supreme Court with respect to fair, defective

or colourable investigation has explained that whenever

a homicide occurs, an Investigating Officer is expected to

cover all the aspects and has to keep in mind whether

the offence would come under the purview and mischief

of the Sections charged. If it is a case of murder, the

I.O. shall always keep in mind whether the offence would

come under Section 299 or Section 300 of the IPC. He

is the first official responder whose duty is to find out the

truth and help the Court in coming to the correct

conclusion. He ought not to know sides either of the

victim or the accused but shall only be guided by law

and be an "epitome of fairness" in his investigation. Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

42. While explaining all this, the Supreme Court

has very succinctly laid down that there is a difference

between the defective investigation and one which is

done in a calculated and deliberate manner or which

reflects inaction on the part of the police. A defective

investigation per se would not inure to the benefit of the

accused, unless it goes into the root of the very case of

the prosecution being fundamental in nature. In

instances of defective investigation, a Court of Law is

required to winnow the evidence available and find out

the truth on the principle that " every case involves a

journey towards truth". "There shall not be any pedantic

approach either by the prosecution or by the Court as a

case involves an element of law rather than morality ".

43. An investigation, we must acknowledge,

would become colourable when there is suppression of

motive or of injuries or of other existing factors viz.

perfunctory investigation. In such an event, there are

possibilities of the entire narrative appearing to be false. Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

If the very foundation of the prosecution case is found

to be false, then no conviction can be recorded.

44. In this context we have re-appraised the

evidence of the witnesses especially of the informant

(P.W. 11) and the investigator (P.W. 12). We have also

examined the evidence of the injured witnesses. There

does not appear to be any inconsistency so far as the

story of assault leaving many persons injured is

concerned. The aforenoted witnesses except P.W. 12

have stated that the victims were taken to different

hospitals for treatment. Some of them stayed back and

got themselves treated at Taraiya Hospital and also

made statements before the P.W. 12 who had visited the

Taraiya Hospital. As noted above, the FIR could have

been registered in the night of 31.08.2010 but if P.W.

12 waited for the exact information to pour in from

P.M.C.H., where two of the critically injured persons had

been referred to, it would be difficult for us to label his

investigation to be colourable and for the purposes of Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

taking sides of one group.

45. After having said that, we must seek for

some reason for the omission in the FIR and in the

statement of witnesses about the injuries received from

the side of the accused persons especially when P.W.

12, the investigator is in know of such injuries. P.W. 12

has, during cross-examination, said that on the request

of such injured persons of the side of the accused party,

necessary requisitions were sent by him to the hospital.

The injuries suffered by them were all simple in nature

which appears from the deposition of Doctor/Alok Bihari

Sharan, who has been examined on behalf of the

prosecution as well as the defence both. On behalf of

the prosecution he has been examined as P.W. 8,

whereas on behalf of the defence he has been examined

as D.W. 5.

46. On behalf of the prosecution, he had

examined Manjur Alam (not examined), Mazda Khatoon

(P.W. 10) and Nishant Praveen (P.W. 4), all of whom Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

were found to have suffered simple injuries. On behalf of

the accused persons, he has examined Nawajish Raja

(juvenile), Nasim Akhtar, Ashif Ali, Anaitullah and Baida

Khatoon, all of whom also had received simple injuries.

One Doctor/Surendra Prasad Singh (P.W. 7) had

examined one person on behalf of the prosecution viz.

Sheikh Hasimullah who also had received simple injuries.

47. The learned Advocate for the appellants

have given stress on the fact that no doctor of

Rajeshwar Hospital or Ruben Hospital at Patna or the

Doctor at P.M.C.H. has been examined at the trial.

Whether the persons who were treated in Rajeshwar and

Ruben Hospitals had received injuries in the same

transaction or not, therefore, could not be proved by the

prosecution. What was the condition of health of the two

deceased could have been known only if Doctors of

P.M.C.H. would have been examined.

48. We have further found that prosecution has

exhibited the fardbeyan of Taraiya P.S. Case No. 92 of Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

2010 filed on behalf of the accused persons as also the

charge sheet in that case. The injury reports of Nawajish

Raja, Nasim Akhtar, Ashif Ali, Anaitullah and Baida

Khatoon, referred to above, also have been brought on

record as Exts. B to B/4. There does not appear to any

motive of hiding the factum of the FIR from the side of

the accused persons and injuries on them by the

prosecution. But why was it not stated in the fardbeyan

and the deposition of the witnesses is a question that

needs resolution.

49. In Laxmi Singh vs. State of Bihar

(1976) 4 SCC 394, the Supreme Court has held that in

a murder case, the non-explanation of the injuries

sustained by the accused at about time of occurrence or

in the course of altercation is a very important

circumstance from which the Court can draw either or all

of the inferences viz.

(I) that the prosecution has suppressed the

genesis and the origin of the occurrence and has thus Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

not presented the true version;

(II) that the witnesses who have denied the

presence of the injuries on the person of the accused are

lying on a most material point and therefore their

evidence is unreliable; or

(III) that in case there is a defence version

which explains the injuries on the person of the accused,

it is rendered probable so as to throw doubt on the

prosecution case.

50. In Arvind Kumar @ Nemichand and

Ors. vs. State of Rajasthan (supra), the Supreme

Court has reiterated that the omission on the part of the

prosecution to explain the injuries on the person of the

accused, assumes a much greater importance when the

evidence consists of interested or inimical witnesses or

where the defence gives a version which is antithetical to

the story of prosecution.

51. From the evidence of P.W. 12 as also the

other witnesses, it appears that there was some dispute Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

between the two groups of Muslim community in the

village over the issue of either controlling the affairs of

the local mosque or over the issue of offering Namaj.

The story of Raja (not examined) singing a song at his

darwaja being the casus-belli does not appear to be

correct. The mosque according to the topography derived

from the deposition of the witnesses does not appear to

be in close vicinity of the houses occupied by Raja, his

father/Naushad and injured persons viz. Irfan and

Irshad. The I.O. claims to have heard a rumor that two

groups in a village had fought amongst each other. In

the night of the occurrence, when he tried to visit the

P.O., he had found blood beneath the wall of one Md.

Tasaduq. No blood was found by P.W. 12 at the darwaja

of Md. Naushad. Keeping these facts in mind, if a clash

took place between two groups of villagers following the

same religion and persons of one group having received

minor injuries, omission to talk about such injuries in the

fardbeyan or in the deposition of the witnesses would Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

not reduce the entire prosecution case to complete

falsehood. Most of the injured persons from the

prosecution side have also received simple injuries.

52. However, not mentioning of such injuries in

the fardbeyan or in the deposition of witnesses at the

trial points towards one aspect of the matter in a very

clear way that the motive stated to be the cause of

occurrence in the FIR is incorrect. From the tenor of the

deposition of the witnesses as also the statement of

P.W. 12 at the trial, it appears to be very probable that

two groups would have clashed amongst each other.

53. There is yet another aspect of the matter

which requires consideration and analysis of evidence.

Did a minor fight galvanize into a full fledged warfare?

Unless it is proved to the contrary, the appellants cannot

be saddled with the charge of common object of killing

the deceased persons. It is quite noticeable that no

lethal weapon was used by anyone of the accused

persons except appellant/Inaitullah [Cr. App (DB) No. Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

900 of 2017)] and Md. Ashif Ali [Cr. App (DB) No. 901

of 2017)].

54. What was the immediate cause of

conflagration remains unknown.

55. It further appears from the deposition of

witnesses that the assailants kept pouring in. All those

persons who came to the rescue of Raja, Irfan, Irshad

etc. were also assaulted. One of the deceased viz. Nurul

Hoda is a complete outsider as he is resident of different

locality. There is no evidence that there was any

concerted or premeditated plan to execute the murder of

the two deceased. In such a circumstance, non-

mentioning of injuries on the side of the accused in the

fardbeyan and in the deposition of witnesses would be

reduced to insignificance.

56. So, if common object of killing does not

stand established, then each of the appellants/accused

persons would be entitled to be dealt with according to

the role played by them.

Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

57. We will come to this aspect a bit later.

58. However, before that, we need to state that

normally a case and a counter case, if triable by the

Court of Sessions, should be tried by the same Trial

Court simultaneously. It has been a salutary practice

that when two criminal cases relate to the same incident,

they are tried and disposed of by the same Court by

pronouncing judgments on the same day.

59. However, there is nothing on record to

indicate hat the case lodged from the side of the defence

was also triable by a Sessions Court.

60. Coming to the specific overt act, appellant

Inaitullah [Cr. App (DB) No. 900 of 2017)] is said to

have given a Bhujali blow resulting in the innards of

deceased/Sanaullah coming out. The oral testimony is

supported by the post-mortem report and the

examination of Dr. Arbind Kumar, who conducted the

post-mortem examination. He had found several

abrasions and contusions and incised wounds on the Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

dead body. However, the fatal injury was an incised

wound which was in stomach, cavity deep below the

umbilicus, taking out a portion of the gut to outside and

exposed. Inside the abdominal cavity, there were blood

and blood clots. There were contusions in the left

temporal region of the deceased as well. According to

P.W. 9, the death was because of the injury in the

stomach and the time fixed for death was 6 to 24 hours

since the post-mortem examination.

61. The same Doctor had conducted the

autopsy on Nurul Hoda who is said to have been

assaulted by Md. Ashif Ali [Cr. App (DB) No. 901 of

2017)] by a Sword which had hit him in his arm. P.W. 9

had found one stitched wound on the right elbow, back

to the right forearm and also to the inner parts of right

wrist and the anteriors of the palm. On further dissection

of the surgical bandage, the radius and ulna in the right

hand was found to be cut completely. The bones of the

right wrist also were cut. The intervening soft tissues Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

had incised injuries with blood and clots at places. The

death in this instance was because of haemorrhage and

shock and may be, which the Doctor (P.W. 9) has not

stated because of fat-embolism because of the damage

to the larger bone.

62. The ante-mortem injuries on the two

deceased clearly conform to the ocular testimony

regarding the assault perpetrated by Md. Inaitullah and

Md. Ashif Ali respectively. The case of Md. Inaitullah

would thus fall squarely within the mischief of Section

302 of the IPC as falling under Section 300 (thirdly).

Appellant Ashif Ali may not have intended to cause such

injury which would, in ordinary course of nature, result

in death. His act, therefore, would fall in the category of

Section 307 IPC. Since for four of the injured persons

who were more seriously injured than the others, there

is no medical evidence on record, the other appellants

cannot be saddled with any specific charge except

Section 324 of the IPC.

Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

63. All the appellants are but guilty for the

offence under Section 148 of the IPC.

64. Considering these aspect of the matter and

the reasons cited above, we convert the conviction of

appellants Md. Alauddin, Nasim Akhtar and Md.

Muzibullah in [Cr. App (DB) No. 761 of 2017)] and

Wasim Akhtar in [Cr. App (DB) No. 827 of 2017)] to

one under Sections 148 and 324 IPC. It would only be

appropriate to sentence them to the period that they

have already undergone in custody. It appears that they

were on bail during the trial but are in jail since the date

of their conviction.

65. As noted above, the case of

appellant/Master Md. Shafiullah has already abated.

66. The conviction of appellant/Ashif Ali is

converted into one under Section 307 of the IPC. It

would only be appropriate to sentence him to undergo

R.I. for ten years for the offence under Section 307 of

the IPC and we order accordingly.

Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

67. The conviction of appellant/Md. Inaitullah

@ Sonu @ Md. Enayatullaha [Cr. App (DB) No. 900 of

2017] is confirmed.

68. It appears from the record and as has been

communicated to us the appellants viz. Md. Alauddin,

Nasim Akhtar and Md. Mojibulla [in Cr. App (DB) No.

761 of 2017], Wasim Akhtar @ Tunna [in Cr. App (DB)

No. 827 of 2017] and Md. Ashif Ali @ Munna [in Cr.

App (DB) No. 901 of 2017] are all in jail. Appellant/Md.

Ashif Ali @ Munna is in custody since 26.05.2017. He

shall be released after completing ten years in custody.

Rest others viz. Md. Alauddin, Nasim Akhtar and Md.

Mojibulla [in Cr. App (DB) No. 761 of 2017], Wasim

Akhtar @ Tunna [in Cr. App (DB) No. 827 of 2017] are

directed to be released forthwith, if not detained or

wanted in any other case.

69. Cr. Appeal (DB) Nos. 761, 827 and 901 of

2017 are partially allowed.

70. Cr. Appeal (DB) No. 900 of 2017 (Md.

Patna High Court CR. APP (DB) No.900 of 2017 dt. 07-10-2023

Inaitullah @ Sonu @ Md. Enayatullaha) is dismissed.

71. Let this order be communicated to the

concerned Superintendent of Jail for record and

compliance.

72. Let the records of these appeals be sent to

the court below forthwith.

73. The I.A.(s), if any, shall also stand disposed

off.

(Ashutosh Kumar, J)

(Shailendra Singh, J)

krishna/-

AFR/NAFR                AFR
CAV DATE                21.07.2023
Uploading Date          07.10.2023
Transmission Date       07.10.2023