Md. Foolsharif @ Md. Phul Sharif vs The State Of Bihar
2023 Latest Caselaw 5180 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.1711 of 2017
   Arising Out of PS. Case No.-69 Year-2014 Thana- RUNISAIDPUR District- Sitamarhi
======================================================

Md. Foolsharif @ Md. Phul Sharif, Son of Yunush Miyan, Resident of Vil- lage- Kharka, P.S.- Runnisaid Pur, District- Sitamadhi.

... ... Appellant/s Versus

The State Of Bihar

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

For the Appellant/s : Ms. Pushpanjali Sharma (Amicus Curiae) For the Respondent/s : Ms. Anita Kumari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL JUDGMENT Date : 09-10-2023

1. Heard the parties.

2. The instant appeal has been filed by the appellant

against the judgment of conviction dated 17.05.2017 and order

of sentence dated 24.05.2017 passed in Sessions Trial No. 577

of 2014/16, arising out of Runnisaidpur P.S. Case No. 69 of

2014, in which the appellant was charged for the offences under

Sections 302, 341, 323/34, 326 and 504 of the Indian Penal

Code (hereinafter referred to as 'IPC") and the trial Court

convicted him for the offences punishable under Sections 304

part II, 341 and 323 read with Section 34 of IPC and held the

appellant guilty of culpable homicide not amounting to murder Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

and accordingly, sentenced him to undergo rigorous

imprisonment for 7 years with a fine of Rs. 50,000/- for the

offence under Section 304 part II of the IPC and in default of

payment of fine, to further undergo additional simple

imprisonment for 3 months. The Trial Court furthre sentenced

the appellant to undergo rigorous imprisonment for one year for

the offence punishable under Section 323 of IPC and to undergo

simple imprisonment for 1 month under Section 341 of IPC and

all the sentences of imprisonment were directed to run

concurrently by the trial Court.

3. The substance of the prosecution's case is as

under:

As per allegation, on 26 February, 2014 at 06:00

PM, the informant's nephew, namely, Bhikhari Sah was standing

at a Cycle shop of one, namely, Krishna Mohan Sah, in the

meantime the appellant came there from his house and started

abusing him, thereafter, the informant's nephew protested then

the appellant started assaulting him by means of lathi and then

co-accused persons, Fakira Miyan, Fuddi Miyan and Md.

Yunish Mian also arrived there and assaulted the informant'

nephew and when the informant and his brother, namely,

Ramjinish Sah reached at the place of occurrence, the appellant Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

brought a sword from his house and inflicted a sword blow at

the leg of informant's brother as he could not return back while

the informant managed to protect himself by returning back on

seeing the appellant with a sword in his hand and thereafter,

informant's villagers gathered there and then the accused

persons including the appellant fled away. After that informant

and his villagers rushed the informant's brother to Primary

Health Centre, Runnisaidpur where the doctor declared him

dead.

4. With the above allegations, the informant

recorded his fardbeyan Exhibit-3 at Runnisaidpur police station,

on that basis the formal FIR bearing Runnisaidpur P.S. Case

No. 69 of 2014 was registered under Sections 302, 326, 323,

341 and 504/34 of the IPC which set the criminal law in

motion.

5. After the completion of investigation, the

police submitted charge-sheet against the appellant under

Sections 341, 323, 326, 302, 504/34 of IPC and the investigation

was kept pending against the other co-accused persons. The

appellant stood charged for the offences as mentioned above.

6. During trial, the prosecution examined

altogether 15 witnesses and produced the following documents Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

and got them marked as Exhibits which are as under:

                           Ext. 1-             Post Mortem Report;
                           Ext. 2-             The injury Report of Bhikhari Sah;
                           Ext. 2/1-          The injury report of Krishna Mohan
                                              Sah;
                           Ext. 3-         Fardbeyan;
                           Ext. 3/1-       The endorsement on fardbeyan.
                           Ext. 4-         Formal F.I.,R;
                           Ext. 5-         Carbon Copy of Inquest Report;
                           Ext. 6-         Signature of S.I. Jitendra Kumar
                                          on requisition for injury report of
                                          Krishna Mohan Sah;

Ext. 6/1- Signature of S.I. Uma Kant Singh on requisition for injury report of Bhikhari Sah;

Ext. 7- C.C. of final form of Runnisaidpur P.S. Case No. 279 of 2014;

Ext. 8- C.C. of formal F.I.R. of Runnisaidpur P.S. Case No. 70 of 2014;

Ext. 9- C.C. of Charge Sheet of Runnisaidpur P.S. Case No. 70 of 2014; and Ext. 10- C.C. of Charge framed in Runnisaidpur P.S. Case No. 70 of 2014 (S.Tr. No. 535 of 2014).

7. After the completion of prosecution's

evidence, the statement of the accused/appellant was recorded Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

under Section 313 of Cr.P.C., in which the main circumstances

appearing against him from the prosecution's evidences were

denied by him and he mainly took the defence that Ram Jinish

Sah, Bhikhari Sah, Krishna Mohan Sah and Ram Phool Sah,

who were members of the prosecution party, attacked at his

house and misbehaved with his mother and when resistance

was made by him then the said persons set his house on fire and

thereafter fled away.

8. I have heard Ms. Pushpanjali Sharma, learned

amicus curiae, and Ms. Anita Kumari Singh, learned

APP appearing for the State and also perused the impugned

judgment and the evidences available on the case record of court

below. In the present matter, as per allegation the appellant

firstly, assaulted the informant's nephew and thereafter, brought

a sword from his house and then assaulted the informant's

brother by the said means and in that occurrence the other co-

accused persons Fakira Miyan, Fuddi Miyan and Md. Ynus

Mian also joined the appellant but the main allegation of

inflicting sword blow is against the appellant as per the

prosecution's story appearing from the FIR.

9. In respect of the prosecution's allegation the

most important prosecution witnesses are the informant and his Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

nephew Bhikhari Sah, who were examined as PW-1 and PW-9

respectively. PW- 1 deposed in his examination-in-chief that on

26.02.2014 at about 6 PM he was standing near a cycle shop of

one namely, Krishna Mohan Sah then the appellant came there

and started abusing him which was objected by him, thereafter

the appellant started assaulting him by means of lathi and then

his brothers Fakira @ Akhtar, Unnis Mian and Shariff Hussain

also arrived there and they started scuffling with him and when

his uncle Ram Jinish Sah tried to save him then the appellant

brought a sword from his house and inflicted a sword blow at

the left leg of his uncle, after the incident his uncle was rushed

to Runnisaidpur hospital where the Doctor declared him dead.

PW.9 who is the informant of the present matter, deposed

almost the similar evidence in his examination-in-chief and both

the said witnesses were cross examined at length by the defence

but they remained firm to their stand and except minor

contradiction regarding the presence of other co-accused

persons with the appellant, nothing came out against the

prosecution's allegation from their cross examination.

10. So far as the evidence of other prosecution

witnesses, other than the Doctor concerned who conducted the

postmortem examination over the body of the deceased is Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

concerned, their evidence is also supportive to the prosecution's

allegation.

11. In this matter, the important evidence is

deceased's postmortem report which was marked as Exhibit-1.

As per the medical expert's opinion given in the postmortem

report of the deceased regarding the external injury of the

deceased, a sharp cut injury at the below left knee in the size of

6" x 3" x bone deep was found on the body of the deceased and

the deceased's knee was found almost being amputated and

attached to the body with ligaments and the Doctor concerned

proved in the postmortem report and deposed that the cause of

death of the deceased was due to hemorrhage and shock leading

to C.R. failure as a result of the injury mentioned in the

postmortem report which was caused by sharp cutting weapon.

In the light of this evidence, the sharp cut injury which was

found on the left knee of the deceased was the main cause of

the death of the deceased as per medical expert's opinion and

the said injury was specifically attributed against the appellant

and he allegedly caused the said injury by using a sharp-edged

weapon, namely sword. As such, the medical evidence

appearing from the postmortem report of the deceased also goes

in favour of the prosecution's allegation. Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

12. The specific defence taken by the appellant

in his statement recorded under Section 313 of Cr.P.C. does not

get support from the evidence of prosecution witnesses and the

same does not appear to be reliable and PW- 10 proved the

postmortem report of the deceased. Though, the appellant

produced and examined two defence witnesses in support of his

defence as to the prosecution party having set appellant's house

on fire, but the defence witnesses did not depose the fact that on

the alleged date of occurrence, the said incident of appellant's

house setting on fire by the prosecution party took place.

Accordingly, I find no force in the said defence of the appellant.

13. Though, in the present matter two important

prosecution witnesses PW 2 and PW 3 were declared hostile but

the informant (PW-9) and his nephew's evidence (PW-1)

discussed above and the evidence of PW- 6 is completely in

support of the prosecution's allegation and PW 6 claimed

himself to be an eye witness of the alleged occurrence and he

deposed that at the time of commission of the alleged

occurrence, he was also present at the place of occurrence and

he saw that the appellant, firstly, abused the informant's nephew

and thereafter, brought a sword from his house and then

assaulted the informant's brother by the said means. Similar Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

evidence was given by PW 7 who is also stated to be an eye

witness of alleged occurrence.

14. In view of the above discussed facts, coming

out from the prosecution evidences, I am of the considered view

that the prosecution succeeded to prove the allegations against

the appellant that firstly, the appellant abused the informant 's

nephew (PW-1) and thereafter assaulted him and informant's

brother and in that course, the appellant used a sword in

assaulting the informant's brother, which resulted in a sharp cut

injury to his left knee which caused his death.

15. As according to prosecution's story, the

alleged occurrence was not pre-planned and the same took place

in the spur of moment and there was no allegation that the

appellant inflicted sword blow repeatedly on the victim, so, the

conviction of the appellant for the offence punishable under

Section 304 part II of I.P.C. appears to be proper and legal and I

find no reason to interfere in the judgment of conviction and

sentence awarded to the appellant by the convicting trial court.

16. The appellant has been languishing in jail

since 18.07.2014, as such, he has completed the entire sentence

of rigorous imprisonment of seven years. I find no merit in the

instant appeal and also no reason to interfere in the judgment Patna High Court CR. APP (SJ) No.1711 of 2017 dt.09-10-2023

impugned, hence, the instant appeal stands dismissed.

17. Ms. Pushpanjali Sharma, learned Amicus

Curiae shall be entitled to remuneration as per notification dated

18.05.2017 issued by the State Government to be paid by the

Patna High Court Legal Services Committee for assisting this

court as Amicus Curiae.

18. Let the L.C.R. be sent back to the trial court

forthwith.

(Shailendra Singh, J) shweta/rajiv AFR/NAFR CAV DATE Uploading Date Transmission Date .