Patna High Court
Md. Junaid @ Md. Juned vs The State Of Bihar on 8 August, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.599 of 2024
Arising Out of PS. Case No.-118 Year-2014 Thana- JADIA District- Supaul
======================================================
Md. Junaid @ Md. Juned son of Late Gyasuddin @ Md. Gayasuddin @ Md.
Giyasuddin R/o- Baghaili, Raghunathpur P.S.- Jadia District- Supaul
... ... Appellant/s
Versus
1. The State of Bihar
2. Md. Shoeb son of Late Md. Allauddin Village- Baghaili Ward No. -13, P.S.-
Jadia District - Supaul
3. Md. Gulab son of Late Md. Allauddin Village- Baghaili Ward No.-13, P.S.-
Jadia District - Supaul
4. Md. Faisal son of Md. Shoeb Village- Baghaili Ward No. -13, P.S.- Jadia
District - Supaul
5. Md. Babul son of Md. Junaid Village- Baghaili Ward No. -13, P.S.- Jadia
District - Supaul
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Md Ziaul Quamar, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 08-08-2024
Heard Md. Ziaul Quamar, learned Advocate for the
appellant and Mr. Ajay Mishra, learned APP for the respondent-
State.
2. The present appeal has been filed under Section
Section 372 (proviso) of Code of Criminal Procedure, 1973. The
appeal has been filed by the informant against judgment and
order of acquittal dated 18.03.2024 rendered by learned
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
2/17
Additional District & Sessions Judge - II, Supaul in Sessions
Trial No. 187 of 2017 arising out of Jadia P.S. Case No. 118 of
2014, whereby the present private respondents or respondents-
accused have been acquitted of the charges levelled against
them for the offence punishable under Section 147, 148, 341,
323, 302 / 149 of the Indian Penal Code.
3. Learned counsel for the appellant-informant, at the
outset, submitted that though there are eye-witnesses to the
incident in question, who have fully supported the case of the
prosecution, the trial Court did not properly appreciate the said
depositions given by the eye-witnesss and passed impugned
judgment and order of acquittal. Learned counsel has supplied
the copies of the depositions of the prosecution witnesses and
the other relevant documents. Learned counsel for the appellant
has firstly referred the fardbeyan given by the son of the
deceased who is P.W.5. It is submitted that in the said
fardbeyan, the informant has narrated the manner in which the
incident took place and role played by the present respondents-
accused. It is submitted that it is the case of the prosecution that
all the accused came at the place of incident with sticks and
lathi and started beating the father as well as uncle of the
informant and in the said incident, the uncle of the informant
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
3/17
sustained injuries and father of the informant sustained injury on
his head, as a result of which both the injured were immediately
taken to the hospital. Thereafter, they were referred to
Darbhanga. However, the father of the informant succumbed to
the injury on the way and thereafter the informant returned with
the dead body of his father and gave his fardbeyan before the
police. Learned counsel further submits that there are eye-
witnesses to the incident in question and, in fact, P.W.1 who is
uncle of the informant and the brother of the deceased and is the
injured eye-witness has supported the case of the informant
despite which the trial Court has passed the impugned judgment
and order. Learned counsel would further submit that P.W.7 is
the Doctor, who had conducted the post mortem of the dead
body of the deceased. The Doctor has specifically deposed that
deceased sustained injury on his head as a result of which he
died. The said injury was caused by hard and blunt substance.
Learned counsel, therefore, contended that the medical evidence
also supports the version of the eye-witnesses. However, the
trial Court has not properly appreciated the aforesaid medical
evidence led by the prosecution and passed impugned judgment
and order.
4. Learned counsel further submits that separate trial
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
4/17
was conducted against four other co-accused and in the said
case also the concerned trial Court acquitted the concerned
accused against which the appellant has preferred separate
appeal.
5. Learned counsel, therefore, urged that the
impugned judgment and order of acquittal calls for interference
and is fit to be set aside.
6. Learned APP has submitted that the trial Court has
not committed any error while passing the impugned judgment
and order of acquittal. However, looking to the facts of the
present case, this Court may pass appropriate order. Learned
APP has further submitted that till date the State has not filed
any acquittal appeal against the impugned judgment rendered by
the concerned trial Court.
7. We have considered the submissions canvassed by
the learned counsel appearing for the parties, we have also
perused the materials placed on record including the fardbeyan
as well as depositions of the prosecution witnesses and the
documents produced by the prosecution. Copy of the same was
supplied by learned counsel for the appellant. From the
materials placed on record, it would emerge that the prosecution
had examined 8 witnesses. P.W.5. is the informant who lodged
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
5/17
the F.I.R. In the fardbeyan given by P.W.5., it has been stated
that the incident took place at about 7 AM in the morning on
29.09.2014
, all the named accused in the fardbeyan came with
stick and lathi and started beating the father as well as the uncle
of the said witness and in the said incident father of the
informant sustained injuries on his head. Initially, they were
taken to Jadia Police Station, however, the concerned police
officer referred both the injured to the Tribeniganj referral
hospital for treatment. The concerned Doctor in the said hospital
referred the father of the informant to Darbhanga for better
treatment and on the way to the said hospital at Darbhanga,
father of the informant succumbed to the injuries and thereafter
the informant returned with the dead body of his father to Sadar
Hospital, Supaul. The concerned authority informed Jadia Police
Station and thereafter a police officer from the said police
station came to the hospital and the fardbeyan of the informant
came to be recorded.
8. P.W.1. is the brother of the deceased. As per the
case of the prosecution, he also sustained injury in the incident
in question. The said witness stated in his examination-in-chief
that all the accused came at the place of incident armed with
sticks and farsa and gave blow to Gayasuddin (deceased) with
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
the said weapon when he as well as wife of Gayaasuddin tried to
save Gayasuddin, all the accused also started beating them and
in the said incident Gayasuddin sustained injuries on his head
and, therefore, they were taken to the hospital and brother of the
said witness died. In the cross-examination, the said witness
stated that the present complaint has been filed by wife of
Gayasuddin and he has also admitted that he is not having any
papers with regard to treatment given to him. He has further
stated that wife of Gayasuddin become unconscious he further
stated that wife of Gayasuddin was not admitted to hospital
and her medical examination was not conducted.
9. P.W.2., Md. Harun, is also brother of deceased
Gayasuddin. The said witness stated in examination-in-chief
that all the accused came at the place of incident and killed his
brother Gayasuddin. The said witness admitted in cross-
examination in para 19 dated 19.02.2022 that in the said
incident the other village people also sustained injuries,
however, he is not in a position to give the name of the said
injured person. He has further stated that his statement was
recorded by the police two to four days after the incident. He
has further stated that 10 to 12 blows were given with stick to
Gayasuddin by the accused. Gayasuddin sustained injuries on
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
various parts of his body.
10. P.W.3 Md. Shaukat has stated in examination-in-
chief that accused came at the place of Gayasuddin and gave
blow with the weapons, which they were carrying and thereafter
Gayasuddin was taken to the hospital and on the way he
succumbed to the injuries. He has specially stated that his house
is situated about 100 meters away from the house of
Gayasuddin. Further the said witness has admitted in the cross-
examination that his statement was recorded by the police after
two days of incident. He has further stated that 9 accused were
beating the deceased with stick, bhala and farsa. He has also
stated that his brother Sauf had given money to Gayasuddin for
purchase of land.
11. P.W.4., Subeda Khatoon, is the wife of the
deceased. The said witness has stated in her examination-in-
chief that all the accused came at the place with Stick, Bhala
and Gadasa and made an assault with the said weapons on her
husband. The said accused have also given blow with the said
weapons to her as well as P.W.1. Jamaluddin and the son of the
said witness. She has also stated that her another brother-in-law
Chaand also sustained injuries in the said incident. The said
witness further admitted that her husband gave representation to
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
Dy. S.P. one month prior to the date of incident because of the
dispute between her husband and the accused. She has also
stated that because of previous enmity with the accused, she had
joined them as accused in the case.
12. P.W.5 Md. Junaid is the informant and son of the
deceased, who lodged the FIR against the accused persons. The
said witness has also stated in examination-in-chief that Soeb
with his brother and other relatives came at the place with sticks
and started beating him as well as his uncle. The said witness
further stated that stick blow was given by Soeb as well Gulab
on the head of his father, his father was taken to Tribeniganj
Hospital and thereafter he was referred to Darbhanga and on the
way his father died. Thereafter, his dead body was taken to
Supaul, where the post mortem was conducted. He has also
stated in examination-in-chief that statement of his father was
recorded in the police station. The said witness also admitted
during cross-examination that before his father succumbed to
the injuries, his statement was recorded at Jadia police station,
however, he did not know that in the said statement his father
had given the name of the concerned persons or not.
12.1. In cross-examination, he stated that when he
reached at the police station Jadia, his father was conscious and
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
his father gave his statements to the police and his father also
made his signature on his statement, but the case was not
registered on the said statement of his father. He further stated
that he cannot say as to whose names were given by his father in
his statements and further stated that this case is registered on
the basis of his statement recorded after the death of his father
and first time he gave name of the accused persons in his
statement.
12.2. He also stated in cross-examination that he saw the
countless injuries on the body of his father and where his father
fell down, there was blood stains on the ground as well as on the
clothes he was wearing. He also stated that his father gave
statement at police station Jadia in injured condition. He further
stated that he gave his fardbeyan at Supaul after the death of his
father. He further stated that this case was not registered on the
statements of his father.
13. P.W.7 is the Doctor who had conducted the post
mortem of the dead body of the deceased. The said witness has
stated that on 29.09.2014, he was posted at Sadar Hospital
Supaul as Medical Officer, on that day, he conducted post
mortem examination at 4:10 PM on the dead body of Md.
Gyasuddin aged about 50 years s/o late Allauddin of ward No.
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
11 village Bageli, P.S. Jadia, District - Supaul, and found the
following external appearance on examination:-
"On dissection:-
1. Scalp and skull lacerated wound stitched
previously opening of size "3X1" skull deep in right
parietal region, skull cavities contained blood and blood
clots.
Vertivery NAD, membrane lacerated. Brain and
spinal cord-brain matter lacerated at the injury site and
blood and blood clot.
Chest, ribs and cartilages - NAD
Pleura-NAD, larynx and Tricia-NAD, Lungs-
NAD, pericadium-NAD, Heart intact, left side empty
right cometents small amount of body
Large vacel-NAD abdominal all - NAD,
peritoniul - NAD, mouth oesophagus and teeth NAD,
STOMACH - Contis small quantity of semy and un
digested food material. Small intestine contest guss liquid
and faces. Large intestine, Contents, guss liquid and
faces. Livir-intact and pale.
Spell - intact, kidneys - intact and pale, pladder-contents
small quantity of residual urine, external and internal -
ginitaila - NAD
Muscle and bones- NAD,
Opening-1 All the above mention injuries are
ante mortem in nature caused by hard blunt substance.
2. Cause of death - death is caused by
hemorrhage and shock caused by above mentioned
injury.
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
3. Time elapsed since death between 6 hour to
24 hours.
Report written by my pen and bears my
signature.(Exhibit)."
14. P.W.8 is the second Investigating Officer, who
had carried out the investigation after 08.05.2015, and the said
witness filed the charge sheet against some of the accused.
15. We have re-appreciated the entire evidence led
by the prosecution. From the evidence led by the prosecution, it
would emerge that the prosecution had projected P.W.1 to P.W.6
as eye-witnesses to the occurrence in question. Most of the
prosecution witnesses are near relatives of the deceased and
they are interested witnesses. We have noticed various major
contradictions as well as discrepancies in the depositions given
by the prosecution witnesses. It is relevant to note that P.W.1,
though claiming to be injured eye-witness, the prosecution has
failed to examine the Doctor, who had given treatment to P.W.1
as well as P.W.4, even the injury certificates of the aforesaid
witnesses were not produced before the Court. It further
transpires from the record that P.W.1. stated in his deposition
that in the said incident deceased Gayasuddin, said witness i.e.
P.W.1 and wife of deceased sustained injuries. However, P.W.5,
who is the informant of the present case, while giving his
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
fardbeyan, has not stated with regard to the injuries sustained by
his mother i.e. wife of deceased Gayasuddin. Further, P.W.4.,
Subeda Khatoon, who is wife of the deceased, has narrated
different story before the Court. The said witness had stated that
in the said incident she had sustained injuries alongwith his
brother-in-law Jamaluddin and Chaand. She had also stated that
her son Junaid also sustained injuries in the said incident. She
had further stated that one month prior to the date of incident,
her husband gave representation to Dy.S.P. with regard to
dispute between the parties and because of the prior enmity, the
accused have been implicated in the present case. This witness
had stated that accused gave blow with stick, bhala and Gadasa
to the deceased. It would further reveal from the deposition
given by P.W.5, who is the informant, that in the said incident
his uncle Chaand as well as the said witness sustained injuries.
However, in the fardbeyan given by the said witness, he had not
stated with regard to injuries sustained by him in the occurrence
in question.
16. At this stage, deposition given by P.W.7 is
required to be referred to. P.W.7. is the Doctor, who had
conducted the post mortem of the dead body of the deceased.
This witness has found only one injury on the head of the
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
deceased. At this stage, it is required to be recalled that as per
the case of the so called eye-witnesses, all the accused came at
the place of incident with sticks and other weapons and all of
them gave blow with different weapons to the deceased as well
as the injured witnesses, however, only one injury was found on
the head of the deceased. Thus, we are of the view that the
medical evidence does not support the version given by the
prosecution witnesses.
17. It is also relevant to note that the prosecution has
failed to examine the Investigating Officer, who has initially
carried out the investigation. Because of the non-examination of
the investigating officer, the defence lost the opportunity to
cross-examine him and thereby prejudice has been caused to the
defence even the so called weapons were not recovered or
discovered from the accused.
18. It is true that merely because witnesses are
interested or related witnesses, their deposition cannot be
discarded. If the deposition given by the interested witnesses is
found to be trustworthy, relying upon the deposition of such
witnesses, conviction can be recorded. However, it is also well-
settled that deposition of such related or interested witnesses is
required to be scrutinized closely.
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
19. As discussed herein above, all the prosecution
witnesses are related to the deceased and are interested
witnesses. There are major contradiction, inconsistencies and
discrepancies in their deposition with regard to the manner in
which the incident took place and that of weapons which the
accused were carrying at the time of incident. It is pertinent to
note at this stage that in the fardbeyan informant had made
general allegation against all the accused that all the accused
came at the place of incident with sticks and other weapons and
started beating the deceased. Even the other so called eye
witnesses have made general allegation against all the accused.
However, none of the prosecution witnesses had stated against
any of the accused that particular accused had given blow with
stick on the head of the deceased. At this stage, the deposition
given by P.W.5. informant is also required to be referred to. The
informant, for the first time, while giving deposition before the
Court in his examination-in-chief, had given name of two
accused, namely, Soeb and Gulab, with an allegation that both
the aforesaid accused gave blow with stick on the head of his
father. However, none of the other witnesses have stated about
the said aspect before the Court. Further, as observed
hereinabove, the Doctor P.W.7., who had conducted the post
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
mortem of the dead body of the deceased, has found only one
injury on the head of the deceased. Thus, we are of the view that
deposition given by so called eye witnesses who are interested
witnesses is not trustworthy. Relying upon such deposition
conviction can not be made.
20. Thus, after re-appreciating the entire evidence led
by the prosecution, we are of the view that the prosecution has
failed to prove the case against the respondent accused beyond
reasonable doubt.
21. At this stage, we would like to refer the decision
rendered by the Hon'ble Supreme Court in the case of
Chandrappa and Ors. Vs. State of Karnataka, reported in
(2007) 4 SCC 415, wherein the Hon'ble Supreme Court has laid
down the guidelines in para 42 regarding the powers of the
Appellate Court while dealing with an appeal against order of
acquittal. The Hon'ble Supreme Court has observed in para 42
as under:
"42. From the above decisions, in
our considered view, the following general
principles regarding powers of the appellate
court while dealing with an appeal against
an order of acquittal emerge:
(1) An appellate court has full
power to review, reappreciate and
reconsider the evidence upon which the
order of acquittal is founded.
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
(2) The Code of Criminal
Procedure, 1973 puts no limitation,
restriction or condition on exercise of such
power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law. (3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused. Firstly, the presumption of
innocence is available to him under the
fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court."
22. Keeping in view the aforesaid principle laid
Patna High Court CR. APP (DB) No.599 of 2024 dt.08-08-2024
down by the Hon'ble Supreme Court, if the facts as well as
evidence of the present case, as discussed hereinabove, are
carefully examined, we are of the view that in the present
acquittal appeal filed by the informant, no interference is
required with the judgment and order passed by the concerned
trial Court.
23. We have also gone through the reasoning
recorded by the trial Court while passing the impugned
judgment and order and we are of the view that the trial Court
has not committed any error while passing the impugned
judgment and order.
24. In view of the aforesaid discussion, we are not
inclined to entertain the present appeal. Accordingly, the same
stands dismissed.
(Vipul M. Pancholi, J)
( Ramesh Chand Malviya, J)
saurabhkr/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 14.08.2024
Transmission Date 14.08.2024
