Amir Hamja, Jan Mohammad @ Jainuddin, Dost Mohammad and Bhutkul Miya @ Bhatu Mian vs The State of Bihar (Now Jharkhand)

The appellants along with the other four accused persons, were prosecuted for the charge under Sections 147, 146, 149, 323, 426, 452, 302 and 34 of the Indian Penal Code. On conclusion of the trial, the appellants have been found guilty of committing murder of Chutur Miya and by the impugned judgment have been convicted u/s 302/34 of the Indian Penal Code and sentenced to undergo life imprisonment. The appellant No. 2, since dead, appeal stands abated against him.

The prosecution was launched on the basis of the fardbeyan of Wahid Miya, father of the deceased Chutur Miya. The prosecution case, in short, is that on 28.3.1983 at about 5 PM while the informant''s son Chutur @ Kamruddin Miya was returning from a tank situated in the South-West of the village after easing himself and reached near the house of Aziz Miya, the appellants along with others chased Chutur Miya. In a bid to save his life, he entered into the house of Aziz Miya. Amir Hamja, Jainuddin, Dost Mohammad and Bhutkul Miya then broke open the door of the room with tangi and dragged out Chutur Miya and brought him to the village road where he was assaulted by the accused persons with deadly weapons causing multiple grievous repeated injuries. Chutur Miya as a result succumbed to the injuries and died. Appellant No. 1 was armed with Farsha, Appellant No. 2, since dead, was armed with Ballam, Appellant No. 3 with Tangi and Bhutkul Miya was having a cycle chain in his hand which they used in assaulting Chutur Mian causing his death. When the informant and his wife tried to save their son, they were also assaulted. They sustained injuries on their persons.

The prosecution in order to prove the charges against the appellant altogether examined eleven witnesses. P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.8 are said to be the eye-witnesses of the said occurrence. P.W.9 is the Investigating Officer and P.W.11 is the Doctor who examined the injured persons and conducted post-mortem on the dead body of the deceased Chutur Miya. The accused persons were examined u/s 313 Cr.P.C. Two defence witnesses were also examined to prove the plea of alibi of Amri Hamja. According to the defence, Amir Hamja, at the relevant time, was under treatment in a hospital and was not present at the place of occurrence as alleged. D.W.2 has proved the treatment register in support of the said defence.

The accused - appellant denied the charges and claimed to be tried. They also gave suggestions to the prosecution witnesses that the deceased Chutur Miya was a criminal and might have been murdered by somebody else.

Learned trial court on the basis of the evidences of PWs 1 to 6 and 8 as also of the P.W. 9 and 11 held the appellants guilty of committing murder of the deceased and convicted them u/s 302/34 of the Indian Penal Code. He, however, found the other accused persons namely Kurcha Miya, Doman Miya and Chakla Miya guilty of only causing injuries to the informant and convicted them u/s 323 IPC. They were sentenced to undergo six months rigorous imprisonment. They have preferred a separate appeal.

The appellants have assailed their conviction and sentence mainly on the following grounds:

(i) The appellants have been falsely implicated without any basis. The prosecution story is highly improbable and unbelievable. According to the prosecution the deceased was murdered on 28.3.1963 at 5 P.M. But the incident was not reported to the Police in the night and the dead body was left lying on the road.

(ii) The deceased was himself a criminal and there is every possibility of his murder by some other persons.

(iii) There was enmity between the informant and the appellants and there is reasonable chance of their false implication.

(iv) P.W.6 and P.W.8 have said in their deposition that they had sent their younger son to the police station in the evening on that very day but his version which in fact is fardbeyan, has not been brought on record. The subsequent version of the informant is not an F.I.R.

(v) There was delay in lodging the F.I.R. The occurrence took place in the evening of 28.3.1983 but the information was given to the police, the next day in the morning at 7 AM.

(vi) Chaukidar, who is said to be taking care of the dead body in the night, has not been examined.

(vii) The prosecution witnesses came only from two families. They are highly interested and the statement of such interested persons cannot be safely relied upon the convict the appellants. Other witnesses who could have thrown some light including the informant''s younger son have not been examined.

Learned A.P.P., on the other hand, submitted that in this case there are eight eye-witnesses who have seen the occurrence and who have given the consistent account of the incident. Except minor and insignificant contradictions, nothing could be elicited in the cross examination. From the consistent evidences of P.Ws, it is evident that the deceased has been killed in the evening at 5 PM in the month of March within the clear view of all the eye-witnesses. The Doctor (P.W.11), who conducted the post mortem, has proved the injuries and has corroborated the ocular evidences. The Investigating Officer (P.W.9) has also fully corroborated the prosecution case. All the important material witnesses and the eye-witnesses have been examined and non-examination of some witnesses, who were not the eye-witnesses, has not in any way prejudiced the defence. The murder took place in the rural area in the evening. The distance of the police station is 15K.M. It was not possible, without any conveyance, to approach the police station in the night. First Information Report was lodged early in the next morning at 7 AM. Taking into consideration the existing circumstances, the delay can not be said to be unexplained. The chaukidar is not an eye-witnesses of the occurrence and his non-examination, as well, has not caused any prejudice to the defence. The incident took place near the house of Alijan Bibi(P.W.1) in presence of Gulbano Bibi(P.W.2) and Ashiran Bibi (P.W.4). They are not closely related to the deceased. Tahiran Bibi (P.W.5) sister of the deceased, Purni Bibi (P.W.6) mother of the deceased and P.W.8 Wahid Miya (Informant) father of the deceased are the competent witnesses, the occurrence took place in their presence. Only because some of the witnesses are near relatives, their testimony can not be discarded. Learned APP relied on the decision of the Supreme Court in Suraj Pal Vs. State of U.P., .

Having heard learned Counsel for the appellant and learned APP, we have appraised the evidences on record. We find that in this case, there are several eye-witnesses, such as P.W.1, P.W.2, P.W.3 and P.W.4. They are not closely related to the deceased P.W.S (sister), P.W.6 (mother) and P.W.8 father of the deceased also witnessed the occurrence. P.W.1 Alijan Bibi in Paragraph-1, P.W.2 Gulbano Bibi in paragraph-2, P.W.4 Ashiran Bibi in paragraph-1 have consistently given bit-by-bit account of chasing, dragging out from the house and assaulting the deceased Chutur Miya with deadly weapons by the appellants. The other eye-witnesses P.W. 3 Hamidan Bibi, P.W.5 Tahiran Bibi, P.W.6. Purni Bibi and P.W.8 (informant) Wahid Miya have also corroborated the testimony of the other eye-witnesses. All those P.Ws have fully proved the prosecution case. The investigating Officer, who visited the place of occurrence, has clearly stated that he found the door plank broken and the trail of blood on the earth at the place of occurrence just the next morning. He has also proved the other facts and corroborated the prosecution case. The Doctor (P.W.11), who conducted the post mortem of the dead body of Chutur Miya, has found multiple injuries on the vital parts of his body caused by sharp cutting weapons and injuries caused by other weapons and has also fully corroborated the ocular evidences.

Learned Counsel appearing for the appellants pointed out same contradictions said to be elicited in the cross-examination of the prosecution witnesses. But we find the said contradiction insignificant and not of that worth to upset the conclusion arrived at by learned trial court. We also find substance in the submissions of learned APP that since the murder took place in the evening of 28.3.1983 in the rural area, 15 Km away from the Police Station, lodging of the FIR the next morning can not be said to be without explanation. The Choukidar was not the eye-witnesses of any part of the occurrence and his non-examination cannot be said to be fatal.

In the evidences of P.W.6 and P.W.8 it has come that they had sent their younger son to inform the police just after the occurrence. But there is no evidence on record to prove that he could reach the police station and inform the incident to the police in the night. In absence of such evidence, it can not be presumed that the police recorded the fardbeyan of the younger son of the informant in the evening and that the same has been deliberately suppressed and that the fardbeyan of the informant was a subsequent statement.

So far as the enmity between the parties is concerned, we find from the evidence that there was allegation of assault on Amir Hamja by Wahid Miya (informant), who was treated in the hospital. The register was proved as Exhibit-C. In this case there are altogether eight accused persons. There is no cogent evidence to prove enmity with all those accused persons. In presence of the overwhelming evidences, as discussed above, the whole prosecution case can not be discarded only on that ground. Moreover, enmity cuts both ends and on that count alone the prosecution version can not be disbelieved. The same view has been taken by the Apex Court in the case of Suraj Pal (Supra).

Learned Trial Court has thoroughly considered all the aspects and arrived at the conclusion on the basis of legal evidences and material on record. We do not find any infirmity or illegality or any ground made out to upset the findings of learned Trial Court.

This appeal is, accordingly, dismissed. The conviction and sentence passed by the trial court is affirmed. The appellants No. 1, 3 and 4 were granted interim bail. Their ball bonds are hereby cancelled and they are directed to surrender forthwith to serve out the sentence. On their failure to do so the court below shall take the required coercive measure.