Jabbar Mian & Ors vs The State of Bihar

None appears on behalf of appellants, whereupon Sri Baban Roy, learned advocate has been requested to assist the Court as an Amicus Curiae.

Appellants Jabbar Mian, Mustafa Mian, Mauladin Mian, Ishaque Mian, Sakir Mian, Sakur Mian, Idrish Mian and Akhtar Mian have been found

guilty for an offence punishable under Section 307/ 149 of the I.P.C. and each one has been sentenced to undergo R.I. for seven years as well as to

pay fine appertaining to Rs.5,000/- in default thereof, to undergo S.I. for two months, additionally, under Section 326/ 149 of the I.P.C. and each one

has been sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs.5,000/- in default thereof, to undergo S.I. for two months,

additionally, under Section 324/ 149 of the I.P.C. and sentenced to undergo R.I. for three years, under Section 148 of the I.P.C. and sentenced to

undergo R.I. for three years, under Section 341 of the I.P.C. and sentenced to undergo S.I. for one year. Appellant Mustafa Mian and Idrish Mian

have further been found guilty for an offence punishable under Section 27(1) of the Arms Act and sentenced to undergo R.I. for three years as well

as to pay fine appertaining to Rs.2,000/- and in default thereof, to undergo S.I. for one month, additionally, with a further direction to run the sentences

concurrently, with a further direction that the period having undergone during course of trial will be set off in accordance with Section 428 of the

Cr.P.C. vide judgment of conviction dated 09.06.2015 and order of sentence dated 12.06.2015 passed by the 2nd Additional Sessions Judge, Gopalganj

in Sessions Trial No.294 of 2008.

PW-7 Nizamuddin Ansari being injured while was in a way to police station met with police officials of Gopalpur P. S. at Rampur School Chowk

gave his fard-bayan to the effect that there happens to be land dispute in between him as well as Jabbar Mian along with his family members, since

before. In the aforesaid background, today i.e. on 27.01.1999 at about 3.30 p.m., Jabbar Mian armed with farsa, Mauladin Mian armed with knife,

Sakir Mian armed with Bhala, Mustafa Mian armed with pistol, Akhtar Mian armed with sword, Ishhaque Mian, Haidar Mian and Sakur Mian armed

with lathi respectively, Idrish Mian armed with pistol came at his darwaza and disclosed that you are creating the litigation so, let it be finally decided

today. Then thereafter, all of them wrongly confined and during course thereof, Jabbar Mian gave farsa blow over his head with an intention to kill.

After sustaining injury, he fell down. Akhtar Mian gave sword blow over head of Aash Mohammad, who also fell down after sustaining injury.

Ishhaque Mian, Haider Mian assaulted them with lathi as a result of which, he became unconscious. After regaining sense, he saw his co-villager

Bhagrashan Thakur, Harihar Bhagat, Bhola Mian, Rajendra Bhagat, who lifted them for treatment. He had also found his other family members Saiful

Khatoon, Khairoon Nisha, Hakikan Khatoon, Johra Khatoon severely injured. He had also seen while escaping there from accused Mustafa Mian and

Idrish Mian fired indiscriminately.

After registration of Gopalpur P. S. Case No.09 of 1999, investigation was taken up and after concluding the same, chargesheet was submitted

facilitating the trial, meeting with the ultimate result, subject matter of instant appeal.

Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete

denial. Furthermore, it has also been pleaded that on the alleged date and time of occurrence the prosecution party brutally assaulted and for that, they

have instituted case against the prosecution party and only to put safeguard upon their interest, instant case has been filed. To substantiate the same,

though no documentary evidence has been adduced in defence, however, DW-1 Sobrati Ansari has been examined.

In order to substantiate its case, prosecution had examined altogether ten PWs, who are PW-1 Pappu Sharma, PW-2 Hakikan Khatoon, PW-3

Khairun Nisha, PW-4 Brajkishore Singh, PW-5 Saimul Khatoon, PW-6 Johra Khatoon, PW-7 Nizamuddin Ansari, PW-8 Aash Mohammad, PW-9

Vainkatesh Sharma and PW-

10 Dr. Janak Lal Sharma. Side by side, had also exhibited as Exhibit1, fard-bayan, Exhibit-1/1, signature of informant, Exhibit-2, formal F.I.R., Exhibit-

3 series, injury report relating to respective injured. Though no documentary evidence had been adduced in defence, however, one DW-1 had been

examined.

Learned Amicus Curiae while assailing the judgment of conviction and sentence has submitted that on each and every count the prosecution has

failed to substantiate its case, whereupon the judgment impugned would not survive. Further elaborating the issue, it has been submitted that no

independent witness has been examined. Although, there happens to be specific disclosure in the written report regarding presence of at least

Bhagrashan Thakur, Harihar Bhagat, Bhola Mian, Rajendra Bhagat and for that, no explanation has been offered at the end of the prosecution. In the

aforesaid background, the evidence of the witnesses, who belonged to one family, admitted presence of counter-case, admitted land dispute since

before, admitted inter se relationship being Pattidar, are to be subject to close scrutiny in order to search out whether the occurrence as alleged took

place in toe with the prosecution version or, according to defence. On that very score, it has been submitted that there happens to be inconsistency

amongst the evidence of the PWs, who claimed themselves to be an injured during course of alleged occurrence and in likewise manner, there also

happens to be inconsistency over the P.O. If the aforesaid infirmities are being taken together with the evidence of the I.O. (PW9), it is apparent that

prosecution case became unbelievable. In likewise manner, the evidence of doctor (PW-10) also did not corroborate the prosecution version and so,

the cumulative effect did not justify the finding having been recorded by the learned trial Court.

On the other hand, learned Additional Public Prosecutor while supporting the finding recorded by the learned lower Court has submitted that true it

is that no independent witness has been examined, but whoever been examined are injured witness and so, their evidences are to be accepted, more

particularly, when there happens to be consistency amongst them and further, corroborated by the evidence of the doctor. That being so, the judgment

of conviction and sentence recorded by the learned lower Court is fit to be confirmed.

In the case of Rajendra Singh v. State of Bihar reported in 2000 Cr.L.J. 2199, it has been held by the three Hon’ble Judges of Hon’ble

Apex Court, as follows:-

“3. So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution case, it

is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in

course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the

accused person which is established to have been caused in course of the same occurrence then certainly the Court looks at the prosecution case with

little suspicion on the ground that the prosecution has suppressed the true version of the incident. In the case in hand accused appellant Rajender had

one penetrating wound, three incised wound and one lacerated wound and of these injuries the penetrating wound on the left axillary area in the 5th

inter costal space ½ x 1/3 x ¾ was grevious in nature as per the evidence of doctor PW-3 who had examined him. On the basis of the evidence of

PW-3 as well as PW-11 the Courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their

person on the date of occurrence. The question, therefore, remains to be considered is whether non-explanation of said injuries on accused appellant

Rajender can form the basis of a conclusion that the prosecution version is untrue. In Mohar Rai and Bharath Rai vs. State of Bihar (1968) 3

SUPREME COURT REPORTS - 525, this Court had held that the failure of the prosecution to offer any explanation regarding the injuries found on

the accused shows that the evidence of the prosecution witness relating to the incident is not true or at any rate not wholly true and further those

injuries probabilise plea taken by the accused persons. But in Lakshmi Singh vs. State of Bihar (1976) 4 Supreme Court Cases (Crl.) 671, this Court

considered Mohar Rai (Supra) and came to hold that non-explanation of the injuries on the accused by the prosecution may affect the prosecution

case and such nonexplanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence

gives a version which competes in probability with that of the prosecution. The question was considered by a three Judge Bench of this Court in the

case of Vijayee Singh vs. State of U.P. (1990) 3 Supreme Court Cases 190, and this Court held that if the prosecution evidence is clear, cogent and

creditworthy and the Court can distinguish the truth from the falsehood the mere fact that the injuries are not explained by the prosecution cannot by

itself be a sole basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. In

Vijayee Singhs case (supra) the Court held that non- explanation of injury on the accused person does not affect the prosecution case as a whole. This

question again came up before a three Judge Bench recently in case of Ram Sunder Yadav and Others vs. State of Bihar (1998) 7 Supreme Court

Case 365, where this Court re-affirmed the statement of law made by the earlier three Judge Bench in Vijayee Singhs case(supra) and also relied

upon another three Judge Bench decision of the Court in Bhaba Nanda Sarma and Others vs. State of Assam (1977) 4 Supreme Court Cases 396,

and as such accepted the principle that if the evidence is clear, cogent and creditworthy then non-explanation of the injury on the accused ipso facto

cannot be a basis to discard the entire prosecution case. The High Court in the impugned judgment has relied upon the aforesaid principle and

examined the evidence of the four eye witnesses and agreeing with the learned Sessions Judge came to the conclusion that the prosecution witnesses

are trustworthy and, therefore, non- explanation of injury in question cannot be held to be fatal, and we see no infirmity with the said conclusion in

view of the law laid down by this Court, as held earlier. We, therefore, are not persuaded to accept the first submission of Mr. Mishra, learned senior

counsel appearing for the accused appellants.â€​

More recently in Dashrath @ Jolo and another Etc.

vs. State of Chhattisgarh reported in A.I.R. 2018 SC 1133 (weekly), it has been held:-

“9. The next contention urged by learned counsel is that the prosecution has not chosen to explain the injuries on the person of the appellants and

this is fatal to case of prosecution. It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same

occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so, the prosecution case should be disbelieved.

Before holding that non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution

case, the court has to be satisfied of the existence of two conditions: i) that the injury on the person of the accused was of a serious nature; and (ii)

that such injuries must have been caused at the time of the occurrence in question…[vide Takhaji Hiraji v. Thakore Kubersing Chamansing (2001) 6

SCC 145]: (AIR 2001 SC 2328).â€​

That means to say, mere presence of injury upon the accused even if unexplained will not cast any kind of deformity over prosecution case unless

the injury happens to be grievous in nature. It is needless to say that though there happens to be admission at the end of prosecution regarding

presence of counter-case, but the defence failed to suggest that they had sustained grievous injury. That being so, defence would not be in a position

to challenge the prosecution on account of non-explanation of injury over them.

In Gian Chand & others vs. State of Haryana

reported in 2013(4) P.L.J.R. 7 (S.C.), it has been held:-

“11. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai

(Dead) Thr. L.Rs. & Anr.

v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 observing as under:

“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the

correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part

of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been

advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a

witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by

Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of

his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the

absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed,

and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in

the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.†(Emphasis

supplied) (See also: Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC

1425; and Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181).â€​

That means to say, there happens to be obligation on the part of the adversary to cross-examine the witness on each and every aspect over which

the party intends to shake testimony of that witness. If he fails, then in that circumstance, it may be presumed as an admission at the end of the

adversary.

So far status of injured witnesses are concerned, in Chandrasekar and another vs. State of Tamil Nadu reported in 2017(4) P.L.J.R. 220 (SC), it

has been held:-

“10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was

speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop

v. State of U.P., (2011) 6 SCC 288 observing as follows:

“28.Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very

reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual

assailant(s) in order to falsely implicate someone.â€​

That means to say, in ordinary course of nature, the evidence of the injured is to be accepted unless and until, there happens to be cogent reason to

disbelieve the same.

Mere examination of family members will not automatically cast stigma over their testimony when there presence at the place of occurrence is

found probable one, nor they could be stamped as an interested, partisan one rather, considering their status to be injured, P.O. being their Darwaza,

happen to be natural witness. In Vijendra Singh vs. State of Uttar Pradesh with Mahendra Singh vs. State of Uttar Pradesh reported in (2017) 11

SCC 129, it has been held:-

“30. It is next contended by Mr. Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they

being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said

parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable

doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs-1 to 3 have deposed in detail about the previous

enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the

identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate

the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the crossexamination for which

their testimony can be discredited. 31. In this regard reference to a passage from Hari Obula Reddy and Ors. v. State of Andhra Pradesh[(1981) 3

SCC 675] would be fruitful. In the said case, a three-Judge Bench has ruled that: “[it cannot] be laid down as an invariable rule that interested

evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is

necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the

interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case,

to base a conviction thereon.†It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is

a natural witness. The Court in Kartik Malhar v. State of Bihar[(1996)1 SCC 614] has opined that a close relative who is a natural witness cannot be

regarded as an interested witness, for the term “interested†postulates that the witness must have some interest in having the accused, somehow

or the other, convicted for some animus or for some other reason.â€​

In the Vijendra Singh (Supra), non-examination of independent witness has also been elaborately dealt with:-

“35. The next plank of argument of Mr. Giri is that since Nepal Singh who had been stated to have accompanied PW-2 and PW-3 has not been

examined and similarly, Ram Kala and Bansa who had been stated to have arrived at the tube-well as per the testimony of PW-2, have not been

examined, the prosecution’s version has to be discarded, for it has deliberately not cited the independent material witnesses. It is noticeable from

the decision of the trial court and the High Court, reliance has been placed on the testimony of PWs 1 to 3 and their version has been accepted. They

have treated PW-2 and PW-3 as natural witnesses who have testified that the accused persons were leaving the place after commission of the

offence and they had seen them quite closely. The contention that they were interested witnesses and their implication is due to inimical disposition

towards accused persons has not been accepted and we have concurred with the said finding. It has come out in evidence that witnesses and the

accused persons belong to the same village. The submission of Mr. Giri is that non- examination Nepal Singh, Ramlal and Kalsa is quite critical for the

case of the prosecution and as put forth by him, their non-examination crucially affects the prosecution version and creates a sense of doubt.

According to Mr. Giri, Nepal Singh is a material witness. In this regard we may refer to the authority in State of H.P. v. Gian Chand[(2001) 6 SCC

71] wherein it has been held that:

 “14. Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record

howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution

should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being

examined in the court and were yet withheld by the prosecution.â€​

The Court after so holding further ruled that it is the duty of the court to first assess the trustworthiness of the evidence available on record and if the

court finds the evidence adduced worthy of being relied on and deserves acceptance, then non-examination of any other witnesses available who

could also have been examined but were not examined, does not affect the case of the prosecution.

In Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors.[(2001) 6 SCC 145], it has been held that:

“19. …if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to

fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who

though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would

oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have

supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a

repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. If the witnesses already

examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of

non-examination of other witnesses.

In Dahari and Ors. v. State of U.P[(2012) 10 SCC 256], while discussing about the non-examination of material witness, the Court expressed the

view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the

prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn

against the prosecution. Similar view has been expressed in Manjit Singh and Anr. v. State of Punjab and Anr.[(2013) 12 SCC

746] and Joginder Singh v. State of Haryana[(2014) 11 SCC 335].â€​

In the background of aforesaid legal principle, which are found fully applicable in the facts and circumstances of the case in hand, now the

materials available on the record are to be filtered in order to trace out whether the finding recorded by the learned lower Court happens to be justified

or not.

PW-10, doctor had examined Saimul Khatoon (PW5), Khairun Nisha (PW-3), Hakikan Khatoon (PW-2), Johra Khatoon (PW-6), Aash

Mohammad (PW-8) and Nizamuddin Ansari (PW-7) on 27.01.1999 and found the following:-

Saiful Khatoon

i) One bruise 2â€​ x 2â€​ on left shoulder.

ii) Diffuse tenderness allover body.

Age of injury within six hours, simple in nature caused by hard and blunt substance.

Khairun Nisha

i) One incised wound 1â€​ x ½â€​ x ½â€​ on middle of scalp.

ii) One bruise 3â€​ x 3â€​ on left elbow with severe tenderness and supra Candler fracture on left elbow. iii) Diffuse tenderness allover body.

iv) One abrasion ½â€​ x ½â€​ on upper portion of right forearm.

Age of injury within six hours. Injury no.(i) is caused by sharp cutting weapon and injury nos.(ii) to (iv) are caused by hard and blunt substance. Injury

no.(ii) is grievous in nature and other injuries are simple in nature.

Hakikan Khatoon

i) One incised wound 2â€​ x ½â€​ x ½â€​ on right parietal region of scalp.

ii) One incised wound 2â€​ x ½â€​ x ½â€​ on right side of forehead.

iii) One bruise 2â€​ x 3â€​ around left elbow with severe

tenderness with supra condlyer fracture of left elbow.

iv) One incised wound 1â€​ x ½â€​ x ½â€​ x ½â€​ on lower end of left arm.

v) Diffuse tenderness allover body.

Age of injury within six hours. Injuries are simple in nature caused by hard and blunt substance.

Ash Mohammad

i) One incised bleeding wound 2â€​ x ½â€​ x bone deep on left parietal region of scalp with fracture of left parietal bone of skull.

ii) One lacerated wound ½â€​ x 1/3â€​ x 1/3â€​ on right upper portion of face.

iii) Diffuse tenderness on left arm.

Injury no.(i) caused by sharp cutting weapon, grievous in nature while injury no.(ii), (iii) caused by hard and blunt weapon, simple in nature.

Johra Khatoon

i) One bruise 2â€​ x 2â€​ on middle of left arm.

ii) Diffuse tenderness on back and on allover body. Simple in nature caused by hard and blunt weapon.

Nizamuddin Ansari

i) One incised wound 3â€​ x ½â€​ x ½â€​ on right parietal region of scalp. ii) One incised wound 1 ½â€​ X ½â€​ X 1/3â€​ on left index finger.

iii) One bruise 2â€​ x 2â€​ on left thigh. iv) Diffused tenderness on back.

v) One bruise 1â€​ x 1â€​ on right hand. vi) One bruise 1 ½â€​ x 1â€​ on left hand.

Injury nos.(i) and (ii) caused by sharp cutting weapon, simple in nature while injury nos.(iii) to (vi) caused by hard blunt weapon,

 simple in nature.

 So from the evidence of doctor, it is evident that PW-5 had sustained injury caused by hard and blunt substance while PW-3 had sustained one

injury caused by sharp cutting weapon, rest by hard and blunt substance. On account of fracture of left elbow, injury no.(ii) has been found grievous in

nature. In likewise manner, Hakikan Khatoon (PW-2) had sustained two incised injuries caused by sharp cutting weapon, rest by hard and blunt

substance out of which, injury no.(iii) has been found grievous, out of fracture of left elbow. Injury over the person of Johra Khatoon (PW-6) has been

found by hard and blunt substance, simple in nature. Ash Mohammad (PW-8) had sustained one incised injury, grievous in nature, rest caused by hard

and blunt substance simple in nature. In likewise manner, informant (PW-7) had also sustained two incised injuries caused by sharp cutting weapon,

rest caused by hard and blunt substance, simple in nature. During cross-examination, nothing has been elicited to discredit his finding.

Coming to ocular evidence, PW-1 as well as PW-4 are formal in nature. PW-2 is Hakikan Khatoon, who had deposed that on the alleged date and

time of occurrence, she was at her darwaza. At that very time, Jabbar Mian, Mauladin Mian, Sakir Mian, Mustafa Mian, Akhtar Mian, Sakur Mian,

Idrish Mian, Ishhaque Mian, Haider Mian came at her darwaza and then, after uttering began to assault. During course thereof, Jabbar Mian,

assaulted Nizamuddin Ansari with farsa over his head. She was assaulted by Sakir Mian over her head as well as over her hand, leg. She sustained

fracture of her hand. Ash Momahhad, Saimul Khatoon, Jobra Khatoon, Khairun Nisha, Maimul Nisha were also assaulted by the accused persons,

identified the accused. During cross-examination at Para-5, she had stated that they have gone to hospital where all of them were treated. In Para-6,

she had stated that they have also gone to police station where their statements were recorded. At Para-7, she had stated that she remained whole

night at police station. After 3-4 days, they returned back to their house. They reached at the police station at about 7.00 p.m. In Para-8, she had

admitted that both the parties are Pattidars. Accused persons have forcibly grabbed their land. But this case has not been instituted for the same

rather it has been instituted on account of assault made by the accused persons. In Para-9, she had stated that even the accused persons returned

back the land, they will proceed with the instant proceeding. In Para-10, she had stated that she is unable to disclose the boundary of the aforesaid

land. She had disclosed the boundary of the P.O. North-Shiv Mandal and Raja Ram, South-Lalan Thakur, East-Niz, West-road. Then had disclosed

that at the time when she reached at the P.O., Nizamuddin Ansari was already lying. Injured were crying. Blood was oozing out. People were

present. She had not talked with them. She remained unconscious for 24 hours. Then at Para-11, she had disclosed that they have been bailed out in a

counter-case. Then at Para-12, denied the suggestion that they have brutally assaulted the accused persons and for that, case has been instituted at

their end and only to save their skin, this case has been instituted.

PW-3 is Khairun Nisha, another injured. She had stated that on the alleged date and time of occurrence, she was at her house. Jabbar Mian came

with farsa and said that you are engaged in litigation and for that, you have to be given a lesson. Then thereafter, other accused persons came being

duly armed. Mauladin Mian armed with knife, Mustafa Mian armed with pistol, Akhtar Mian armed with sword, Sakur Mian armed with pistol, Idrish

Mian armed with pistol, Musafir Mian armed with bhala, Haidar and Ishhaque Mian armed with lathi. They began to assault her husband Nizamuddin

Ansari. Jabbar Mian gave farsa blow over his head. When she rushed to rescue, she was assaulted by Musafir with farsa. Johra Khatoon, Hakikan

Khatoon, Khairun Khatoon, Saimul Khatoon were also assaulted, identified the accused. During cross-examination at Para-6, she had stated that

accused persons are not her Pattidar. Accused persons have not encroached upon her land. In Para-7, she had stated that no case was pending since

before the occurrence. She had shown the boundary of the P.O. as North-Mauzam Mian, South-Shiv Mangal Thakur, East-house of Imamuddin,

West-Hansh Dev. In Para-9, she had stated that they have gone to police station and then to hospital. In Para-10, she had admitted that accused

persons have also instituted a case against them. Then had stated at Para-12 that she was not unconscious. Hakikan Khatoon, Saimul Khatoon and

Johra Khatoon and two other female became unconscious. Then had denied the suggestion that they have brutally assaulted the accused persons for

which, they have instituted a case and only to put safeguard upon their interest, this case has been instituted.

PW-5 is Saimul Khatoon. She had stated that on the alleged date and time of occurrence, she was at her darwaza. At that very time, Jabbar Mian,

Mauladin Mian, Sakir Mian, Mustafa Mian, Akhtar Mian, Sakur Mian, Ishhaque Mian, Idrish Mian, Haider Mian armed with farsa, knife, Bhala,

sword, lathi came. Jabbar Mian gave farsa blow over head of Nizamuddin Ansari. Then, Mauladin Mian gave knife blow over the informant. Akhtar

Mian had assaulted Ash Mohammad with sword over his head, Sakir Mian had assaulted Hakikan Khatoon with lathi. She along with Khairun Nisha

were assaulted by lathi. On hue and cry, villagers came seeing whom accused persons fled away, claimed identification. During crossexamination at

Para-4, she had admitted that accused persons to be her Pattidar. Ancestral property has been partitioned amongst them. Then at Para-5, she had

stated that she is not remembering the Survey plot number of the disputed land. It has got an area of five kattha having boundary North-Shiv Mangal,

South-Bhagan Thakur, EastNiz, West-Ram Bhabhikhan Thakur. Accused persons have got half share from western side. At Para-7, she had stated

that they have gone to police station and then, to hospital where they were treated. In Para-9, she had stated that when she had seen the injured, at

that very time, they all were unconscious. Blood had oozen out. Blood was also spread over cloth. In Para-10, she had stated that she is not aware

with the fact whether accused persons are claiming the land or not. Then had denied the suggestion that they forcibly tried to dispossess the accused

persons and for that, they have brutally assaulted as a result of which, case was instituted at their behest and only to safeguard their skin, instant case

has been filed.

PW-6 is Johra Khatoon. She had deposed that on the alleged date and time of occurrence, while she was at her darwaza, Jabbar, Sakir, Mustafa,

Akhtar, Ishhaque, Sakur, Idrish, Haider came at the darwaza of Nizamuddin Ansari, who was sitting there. Then, Jabbar Mian said that today, he is to

be given a lesson, gave farsa blow over his head. Ash Mohammad came in rescue, who was assaulted by Akhtar Mian with sword. Then thereafter,

she along with Hakikan Khatoon, Khairun Nisha, Saimul Khatoon came in rescue, whereupon were assaulted. Then thereafter, accused persons fled

away. During cross-examination at Para-4, she had admitted that both the parties are Pattidars. She is not aware whether partition has been effected

amongst them through Court or through registered deed. At Para-5, she had stated that she is not aware with the fact that land dispute is persisting

amongst them and for that, she had explained in Para-6 that males do not like to gossip with the female over the same. In Para-7, she had stated that

police came after fleeing of the accused persons. She had also admitted that both the parties have gone to police station, police took them away over

vehicle. In Para-8, she had stated that when she had came over P.O., she had found Nizamuddin Ansari and Ash Mohammad lying over the ground,

blood was coming out from the injuries. In Para-9, she had stated that both were unconscious. They regained sense at Kuchaikot Hospital. In Para-10,

she said that she is unable to disclose the boundary of the P.O. In Para-11, she had admitted that accused persons have also instituted case against

them. Then denied the suggestion.

PW-7 is the informant. During examination-in-chief, he had reiterated his earlier version. During cross-examination at Para-7, he had stated that

both the parties are not Pattidars. At Para-8, he had disclosed boundary of the P.O. as North-Shiv Mangal Thakur, South-Shiv Mangal Thakur, East-

Niz, West-Bhabhikhan Thakur. In Para-8, he had stated that after occurrence, they all proceeded to police station on barefoot, met with police

officials during midst of way and then thereafter, they were taken over police jeep to police station and then to hospital. In Para-10, he had stated that

he is not remembering Khata Number, Khesra Number of the P.O. Land. He is not remembering the boundary. He is not remembering the area. In

Para-11, he had admitted presence of counter-case. Then had denied the suggestion that in order to grab the land of the accused, which they

proceeded, assaulted the accused persons, whereupon case was instituted at their end and only to safeguard their interest, instant case has been

instituted.

PW-8 is Ash Mohammad Ansari. He had deposed that on the alleged date and time of occurrence, he was sitting at his darwaza. At that very

time, Jabbar Mian, Mauladin Mian, Akhtar Mian, Mustafa Mian, Idrish Mian, Sakir Mian, Sakur Mian, Ishhaque Mian, Haidar Mian armed with farsa,

sword, lathi, bhala, knife came and encircled him as well as Nizamuddin Ansari. Jabbar Mian gave farsa blow over head of Nizamuddin Ansari as a

result of which, he fell down. He was assaulted with sword by Akhtar Mian over his head. On hue and cry, the female members came in rescue

whereupon Sakir Mian gave bhala blow over Hakikan Khatoon, Khairun Nisha, Saimul Khatoon, Johra Khatoon was assaulted by knife. Mauladin

Mian assaulted Khairu Nisha with knife. Accused persons also caused fracture of hand of Hakikan Khatoon and Khairu Nisha. Remaining were also

assaulted and then thereafter, the accused persons escaped there from. During cross-examination at Para-6, he had shown the boundary of the P.O.

as North-Shiv Mangal Thakur, South-Shiv Mangal Thakur, East-Hosildar Mian, West-Ram Bhabhikhan Thakur. In Para-7, he had stated that P.O. is

darwaza of Hosildar Mian. In Para-8, he has stated that after occurrence, accused persons fled away. In Para-9, he had admitted presence of

counter-case. He had denied that accused persons were admitted to hospital. In Para-10, he had stated that this occurrence has taken place on

account of land dispute. Disputed land happens to be 22-23 Bigha, accused persons have got half share and remaining half belongs to them, but he is

unable to say Khata Number, Khesra Number. Then had stated at Para-11, blood had fallen over the ground, cloth. Then had denied the suggestion.

PW-9 is the I.O. Benktesh Sharma. He after recording fard-bayan, instituted case (exhibited) and then thereafter, took up investigation. He

inspected place of occurrence as pointed by the witness Bhigrashan Thakur. Then had identified the P.O. which begins from the darwaza of Hosildar

Mian to Bhigrashan Thakur having boundary as North-Hosildar Mian, South-house of Mauzam Mian and Indrani Thakur, East-land of Hosildar Mian,

West-Mauzam Mian and Bhigrashan Thakur. Recorded further statement of the informant as well as other injured witnesses. As he was transferred

on account thereof, he handed over charge to Bhrigunath Singh. During cross-examination at Para-4, he had stated that it is correct to say that the

P.O. happens to be darwaza of informant. Further, he disclosed that the boundary of the darwaza of informant happens to be the same, which

happens to be the boundary disclosed relating to the P.O. Then had admitted that with regard to 11 kattha land, case was pending. He had also

admitted presence of counter-case.

After deducing the evidences of the witnesses, it is apparent that PW-2, PW-3, PW-4, PW-5, PW-7 and PW-8 have not disclosed that the P.O.

happens to be in between darwaza of Hosildar Mian, Bhigrashan Thakur rather they claimed the P.O. to be their darwaza. They have not shown

presence of darwaza of Hosildar as well as Bhigrashan Thakur. When the P.O. is identified from the evidence of the respective witnesses, PW-2 had

identified North-Shiv Mangal, South-Lalan Thakur, East-Niz, West-road. While PW-3 had disclosed the boundary as North-Mauzam Mian, South-Shiv

Mangal Thakur, East-house of Imamuddin, West-Hanshdeo Baba. PW-5 had disclosed as North-Shiv Mangal, South-Bhagan Thakur, East-Niz, West-

Ram Bhabhikhan Thakur. PW-7 had disclosed as North-Shiv Mangal Thakur, South-Shiv Mangal Thakur, East-Niz, WestBhabhikhan Thakur while

PW-8 had disclosed the boundary as NorthShiv Mangal Thakur, South-Shiv Mangal Thakur, East-Hosildar Mian, West-Ram Bhabhikhan Thakur

while PW-9, the I.O. had found the boundary of the P.O. as North-house of Hosildar Mian, SouthMauzam Mian and Indrani Thakur, East-Hosildar

Mian, WestMauzam Mian and Bhigrashan Thakur. That means to say, there happens to be inconsistency over the place of occurrence. None of the

witnesses including that of I.O. (PW-9) had disclosed distance in between the darwaza of Hosildar Mian to Bhigrashan Thakur and further, whether

the darwaza of informant lies in between. Though at Para-4, he had stated that the P.O. happens to be darwaza of informant and the boundary

happens to be the same.

So far manner of assault is concerned, there happens to be consistency amongst the witnesses with regard to assault over their persons. However,

there happens to be no allegation at the end of the prosecution that they have taken any undue advantage once they sustained injury. Furthermore,

land dispute amongst the parties persist since before as well as counter-case having at the end of the appellants, did not justify the conviction recorded

by the learned lower Court to the extent of Section 307/ 149 of the I.P.C. In likewise manner, all the appellants could not be found guilty for an

offence punishable under Section 148 of the I.P.C. in the background of the fact that Sakir Mian, Ishhaque Mian, Haider Mian were armed with lathi,

whereupon their conviction under Section 148 I.P.C. would not survive. In likewise manner, there happens to be inconsistent version against the

appellants Mustafa Mian and Idrish Mian with regard to using the firearm during course of fleeing and so, did not justify the finding recorded by the

lower Court relating to Section 27 of the Arms Act. Furthermore, the evidence suggest that Akhtar Mian individually to be held guilty for an offence

punishable under Section 326 of the I.P.C. and for that is sentenced R.I. for three years. All the appellants to be guilty for an offence punishable

under Section 325/ 149 of the I.P.C. and for that, are sentenced to R.I. for three years while affirming the conviction and sentence against the

appellants for an offence punishable under Section 324/ 149, 341 of the I.P.C. So far conviction and sentence relating to Section 148 of the I.P.C. is

concerned, save and except the three named above, conviction and sentence recorded against remaining appellants are also confirmed. In terms

thereof, appeal is partly allowed. Appellants are on bail, hence their bail bonds are cancelled directing them to surrender before the learned lower

Court to serve out remaining part of sentence within fortnight, failing which the learned lower Court will proceed against them in accordance with law.

First and last page of the judgment should be handed over to the learned Amicus Curiae for needful.