Tanvir Alam vs The State Of Bihar
2023 Latest Caselaw 4664 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.486 of 2017
     Arising Out of PS. Case No.-348 Year-2014 Thana- MAJHAULIA District- West Champaran
     ======================================================

Samina Khatoon Daughter of Abdul Wahab Resident of Village Jaukatiya , Police Station- Majhauliya, District- West Champaran.

... ... Appellant/s Versus

1. The State of Bihar.

2. SK. Salauddin Son of late SK. Maksud.

3. Tanvir Alam Son of Sk. Salauddin.

4. Nausad Begum Wife of SK. Salauddin.

All are resident of Village- Jaukatiya, SK. Toli, Police Station- Majhualiya, District- West Champaran.

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 1351 of 2017 Arising Out of PS. Case No.-348 Year-2014 Thana- MAJHAULIA District- West Champaran ====================================================== Tanvir Alam Son of Sheikh Salauddin, Resident of Village- Jaukatiya Sheikh Toli, P.S.- Majhauliya, District- West Champaran.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 486 of 2017) For the Appellant/s : Mr. Anant Kumar Mishra, Adv. For the Resps. 2 & 4 : Mr. Hemant Ray, Adv.

Mr. Umesh Chandra Verma, Adv.

(In CRIMINAL APPEAL (SJ) No. 1351 of 2017) For the Appellant/s : Mr. Hemant Ray, Adv.

Mr. Umesh Chandra Verma, Adv.

For the Respondent/s : Mr. Shyed Ashfaque Ahmad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 18-09-2023

The appellant/Samina Khatoon in Cr. Appeal (DB)

No. 486/2017 has challenged the judgment of the Trial Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

Court, acquitting the respondent nos. 2 and 4, namely,

Sk. Salauddin and Nausad Begum of all the charges and

convicting respondent/Tanvir Alam for a lesser offence of

324 IPC instead of 307 IPC. She is represented by Mr.

Anant Kumar Mishra, learned Advocate. Mr. Hemant Ray,

learned Advocate has appeared on behalf of respondent

nos. 2, 3 and 4. Simultaneously, Mr. Hemant Ray,

learned Advocate, has appeared on behalf of

appellant/Tanvir Alam in Cr. Appeal No. 1351/ 2017 and

has assailed the judgment and order of conviction,

holding the appellant/Tanvir Alam to be guilty under

Section 324 of the I.P.C. and having sentenced him to

undergo R.I. for two years.

2. Though an appeal involving conviction of less

than ten years is posted before a Single Judge but

considering the fact that appeal against acquittal in a

case instituted for the offence under Section 307 was

posted for consideration before the Division Bench, the

case of appellant/Tanvir Alam has also been placed Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

alongside for consideration.

3. Both the appeals have been heard together

and are being disposed of by this common judgment.

4. The victim/appellant [in Cr. Appeal (DB) No.

486/ 2017] namely Samina khatoon had lodged the First

Information Report vide Majhauliya P.S. Case No. 348 of

2014 on 15.10.2014 alleging that the respondents/ Sk.

Salauddin, Nausad Begum and appellant/Tanvir Alam

entered her house at 12:45 PM on 10.10.2014 and

appellant/Tanvir Alam assaulted her by knife. All the

accused persons took away the trousseau which was

being shown to the villagers by her mother. The cause of

occurrence as stated by the victim is the refusal of the

family to settle the case which was lodged by her

father/P.W.4 against the appellant/Tanvir Alam.

5. On the basis of the aforenoted fardbeyan

statement, the case was lodged for offences under

Sections 341, 323, 324, 307, 379, 504, 506 and 34 of

the I.P.C.

Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

6. The police after investigation submitted

charge sheet against the respondents for offences under

Sections 307 and other allied sections of the I.P.C.

7. The Trial Court after having examined six

witnesses on behalf of the prosecution, acquitted the

respondents viz. Sk. Salauddin and Nausad Begum but

convicted their son, namely, Tanvir Alam for the offence

under Section 324 of the I.P.C. vide judgment dated

17.03.2017 passed in Sessions Trial No. 494 of 2015.

By order dated 17.03.2017, only appellant/Tanvir Alam

was sentenced to undergo imprisonment for two years.

8. The learned Advocate for the

appellant/Samina Khatoon (P.W.2) has submitted that

the Trial Court was not justified in recording conviction

under Section 324 IPC only when the appellant/Tanvir

Alam had given repeated knife blows, causing four

grievous injuries on the person of the victim. In this

manner, the learned Advocate has submitted that the

Trial Court has completely misdirected himself in Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

adjudging the guilt of the respondents. He has further

submitted that merely because only related witnesses

stood in the witness box, the Trial Court was not justified

in disbelieving them. Additionally, it has been argued that

the motive for committing the crime was very clear and

had been established by the prosecution. The father of

the victim, namely, Abdul Wahab (P.W.4) had earlier

lodged a case against appellant/Tanvir Alam vide

Majhauliya P.S. Case No. 46 of 2012 dated 19.02.2012

under Sections 341, 323, 451, 379, 504 and 506 of the

I.P.C. which the respondents wanted it to get settled.

Since such request was refused by the family of

appellant/Samina Khatoon, this occurrence has taken

place.

9. As opposed to the aforenoted contentions, the

learned Advocate appearing for the respondents in Cr.

Appeal (DB) No. 486 of 2017 and for the appellant in Cr.

Appeal No. 1351 of 2017 has submitted that the Trial

Court never disbelieved the deposition of four witnesses, Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

viz. P.Ws. 1 to 4 which included the parents of the victim

and the victim herself or else no conviction would have

been recorded against the appellant/Tanvir Alam under

Section 324 of the I.P.C. He has further argued that

according to the victim (P.W.2), several persons were

sitting in the house when the occurrence took place. This

presupposes that those visitors also as they were all

neighbours, may have tried to prevent the occurrence

from happening. Neither have they been cited as

witnesses nor anyone of them has come forward to

support the prosecution case. All that the Trial Court has

said that enmity cuts both ways. For enmity, a person

could be falsely implicated but to avenge enmity, assault

may be perpetrated. This, by no stretch of imagination,

could be stated to be a proposition which is not

acceptable under the law to invite any interference by the

superior court.

10. We have examined the deposition of

witnesses in great detail. The victim (P.W.2) has Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

supported the prosecution case in its entirety. However,

we have found that in some respects, she has tried to

improve upon her case. In her fardbeyan statement, she

has only referred to her mother and has stated that she

was showing the articles purchased for dowry of P.W.2 to

her neighbours. In the fardbeyan, she had but not

mentioned anything about the presence of her parents

viz. Shabnam Arra and Abdul Wahab (P.Ws.3 and 4) as

also her brother Taufique Alam (P.W.1).

11. True it is that it may not be necessary for an

eye-witness and a victim to name all the persons present

near the place of occurrence but, in a case of this kind

where the assault takes place in the house of the victim

who has spoken about the presence of many persons in

the house at that time, missing out on the presence or

absence of her parents and brother assumes some

significance. If not for anything else, then for evaluating

whether the parents and brother of the victim could be

believed to be the eye witnesses to the occurrence. Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

12. Be that as it may, with respect to the

allegation of assault, P.W.2 has said nothing which would

in any manner discredit her eye witness account. A victim

would not unnecessarily implicate an innocent person.

The evidence of the Doctor viz. P.W.5 clearly confirms

that the victim was assaulted with knife repeatedly. She

has received four injuries, two of which have been opined

to be grievous. Such injuries cannot be said to be self

inflicted. In that case, if there is no one else on whom the

blame was put, it is very difficult for the respondents and

appellant/Tanvir Alam to be believed that the entire story

of the assault by knife by Tanvir is false.

13. The father of the victim had earlier lodged a

case about which we have referred to in the preceding

paragraphs. The consistent evidence of P.Ws. 1 to 4 is

that the occurrence took place for the refusal of the

family to compound the case against the appellant/

Tanvir Alam.

14. We at one point of time also looked into the Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

fact whether the appellant/Tanvir's action reflected any

evidence of his being a jilted lover. But no, there is no

evidence to that effect. However, the accusation against

appellant/Tanvir Alam in the FIR vide Majhauliya P.S.

Case No. 46 of 2012 lodged by the father of the victim,

the allegation is of house trespass and theft.

15. In this context, out attention was drawn to

Ext.-A filed on behalf of the defence which is a

communication by the Medical Officer of the Bettiah Jail

to the Superintendent, informing him that Tanvir Alam

continues to be mentally sick. He was on medication from

before and because of his situation worsening in the jail,

he would require better treatment, perhaps at Ranchi.

16. The Trial Court appears to have rejected

such document on the ground that it was of an anterior

date to the date when the offence is said to have been

committed. We do not find any fault with the Trial Court

not believing in Ext.-A and holding that the appellant had

been mentally ill when he had attacked the victim for two Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

reasons; the exception to insanity has to be proved and

the proof is not extendable to only medical ground. The

proof has to be legal and contextual as propounded under

the M'Naghten rule (pronounced and sometimes spelled

as Mc Naughton). That every man is presumed to be

sane. To establish a defence on the ground of insanity, it

must be clearly proved that, at the time of the

committing the offence, the accused was labouring under

such a defect of reason, from the disease of the mind, as

not to know the nature and quality of the act he was

doing; or if he did know it, that did not know that what

he was doing was wrong.

17. Mere sluggish mind would not be enough.

When the Court rejected Ext.-A on the ground of such

communication having been made after the occurrence,

the Court must have been looking for legal evidence to

give the benefit of insanity to the appellant. On that

score, we do not intend to criticize the judgment at all.

18. That the parents of Tanvir though have Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

been named by the victim and her parents as having

accompanied their son when the occurrence took place,

we agree with the reasoning of the Trial Court that no

specific accusation had been levelled against them.

19. The Trial Court was rightly of the opinion

that because of the earlier case and the dispute between

the family of the appellant and the victim, there could be

a possibility of the false implication of the parents of

appellant/Tanvir, which cannot completely be overlooked

or excluded. Rightly therefore, the benefit of doubt was

given to the respondents who are the parents of Tanvir

Alam.

20. As we have noted earlier, it was Tanvir

only who had inflicted knife blows on P.W.2. The knife

blows proved to be grievous, inviting the mischief of

Section 324 of the IPC. Appellant/Tanvir has been

convicted under Section 324 IPC.

21. The conviction of appellant/Tanvir is also

not required to be interfered with. However, looking at Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

the totality of the circumstances, the manner in which the

occurrence is said to have taken place; lack of any

independent witnesses, no effort made by the prosecution

to prove the link between any demand of the accused

persons of compounding of Majhauliya P.S. Case No. 46

of 2012 and the nature of injuries which though were

found to be grievous but not life-threatening and most

importantly, the mental health of appellant/Tanvir even

though it would be deemed to be a post accusation

development, we are of the view that interest of justice

would be met if the sentence of two years against

appellant/Tanvir is reduced to the period that he has

already undergone in custody. The records reveal that he

has remained in jail for approximately nine months. We

say so also for the other reason that the occurrence took

place approximately nine years ago.

22. Thus, the appeal of the victim/Samina

Khatoon (Cr. App. (DB) No. 486 of 2017) is dismissed.

23. The appeal of Tanvir Alam (Cr. App. No. Patna High Court CR. APP (DB) No.486 of 2017 dt.18-09-2023

1351 of 2017) is also dismissed but with modification in

the sentence whereby a sentence of two years for the

offence under Section 324 IPC has been reduced to the

period which the appellant/Tanvir Alam has already

undergone.

24. The records further reveal that the

appellant was granted provisional bail by the Trial Court

which was confirmed by the High Court.

25. The appellant/Tanvir Alam is discharged of

the liabilities of the bail bonds.

26. Both the appeals stand disposed of

accordingly.

                                                                          (Ashutosh Kumar, J)


                                                                      ( Alok Kumar Pandey, J)
rishi/shahzad
AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          21.09.2023
Transmission Date       21.09.2023