Juman Mian And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

Ten persons were named as accused by Bijali Mian, father of the deceased, namely, Jumrati Mian in Birani P.S. Case No. 114 of 1995, which was lodged under sections 147, 323, 341 and 324 IPC on the basis of a written information given by Samsuddin Ansari to the police on 21.11.1995. Later on, the offences under section 307 IPC and section 302 IPC were added in the report.

After the investigation, two charge-sheets were submitted, one against the accused persons, namely, Juman Mian, Chhathu Mian, Bariar @ Barar Mian, Budhan @ Budhu Mian, Shamim Bano, Jainab @ Jainabi Khatoon and another against Sakina Bibi, Bishani Khatoon and Hussain Mian. They have faced the trial on the charge under section 302/149 IPC; the accused namely, Juman Mian was charged separately under section 302 IPC. The accused persons namely, Bariar Mian @ Barar Mian, Chhathu Mian and Hussain Mian were also charged under section 324 IPC. Further, Bariar Mian is also charged under section 326 IPC.

During the trial, the prosecution has examined altogether sixteen witnesses; the informant is P.W. 5 and the doctor who has conducted the postmortem examination is P.W. 6.

Dr. Rajendra Choudhery-P.W.6 has found the following injuries on Jumrati Mian;

(i) one stitched wound on the right side of head 2½" long.

(ii) swelling on middle of the head right side 2"x1½" in size.

(iii) abrasion on middle of left side of head.

On removal of the stitched wound, fracture of right parietal bone with laceration of brain was found and dark blood was oozing.

According to the doctor, the injuries on Jumrati Mian were caused by hard and blunt substance, may be lathi, and those injuries were sufficient in the ordinary course to cause death.

The learned trial judge has acquitted Bishani Khatoon, Sakina Bibi, Jainab @ Jainabi Khatoon and Shamim Bano @ Bano Khatoon of the charge under section 302/149 IPC.

The accused persons, namely, Juman Mian, Bariar Mian, Hussain Mian, Budhan Mian @ Budhu Mian and Chhathu Mian were found guilty under section 302/149 IPC and they have been sentenced to undergo R.I for life for the said offence.

Bariar Mian has been found guilty also under section 326 IPC and he has been sentenced to under R.I for ten years.

Hussain Mian has been convicted under section 324 IPC and sentenced to undergo R.I for two years.

Other charges framed against the accused persons, that is, charge under section 324 IPC framed separately against Bariar Mian and Chhathu Mian, have failed.

Mr. Shekhar Sinha, the learned Public Prosecutor referring to the affidavit dated 19.07.2019 states that during pendency of this criminal appeal the appellant no. 1, namely, Juman Mian has been released, on remission, by virtue of the order of State Sentencing Review Committee.

In view of the affidavit dated 19.07.2019, Mr. Prakash Chandra Roy, the learned counsel for the appellants has not pressed this criminal appeal on behalf of the appellant, namely, Juman Mian.

In his fardbeyan, the informant has stated that a scuffle took place in his field (khalihan) over cutting of bamboos. He has alleged that Juman Mian gave tangi blow on the head of his son Jumrati Mian and, thereafter, Bariar Mian has assaulted Garbali Mian with tangi. The informant has alleged that when Bhola Mian tried to save Garbali Mian, Hussain Mian attacked him with tangi and the other accused persons, namely, Budhan Mian and Chhathu Mian have assaulted Jumrati Mian and Garbali Mian with lathi. The injured persons, namely, Garbali Mian, Jumrati Mian and Bhola Mian were brought to Sadar Hospital, Giridih, but the doctor referred them for treatment to Ranchi. The informant has stated that when the injured were taken to Ranchi, on the way Jumrati Mian died at Koldiha.

Mr. Prakash Chandra Roy, the learned counsel for the appellants submits that before fardbeyan of Bijali Mian was recorded on 22.11.1995, a written report was submitted by Samsuddin Ansari on 21.11.1995 in which none of the appellants were named as accused, though Samsuddin Ansari is an eye-witness according to the informant-Bijali Mian.

On perusal of the written report dated 21.11.1995 submitted by Samsuddin Ansari, we find that it was a cryptic information. Nothing in respect of the actual occurrence has been described by Samsuddin Ansari in his written report and, in fact, he has named the appellants as aggressors.

The prosecution has projected Bhola Mian-P.W.1, Bijali Mian-P.W.2, Sahnaj Khatoon-P.W.3, Garbali Mian-P.W.4 and Samsuddin Ansari-P.W.5 as eye-witnesses. According to the prosecution witnesses, Bhola Mian, Razaque Mian and Garbali Mian have suffered injuries in the occurrence which has taken place in the field of Bijali Mian on 21.11.1995, but the injured Razaque Mian who was examined during the trial as P.W.9 has turned hostile. There are as many as seven prosecution witnesses-P.W.8, P.W.9, P.W.12, P.W.13, P.W.14, P.W.15 and P.W.16 who have either not supported the prosecution's case or were examined as formal witnesses. Gujari Khatoon-P.W.7 wife of deceased claimed to be eye-witness to the occurrence. But investigating officer-P.W.10 stated that he has not recorded the statement of Gujari Khatoon, wife of deceased whereas he recorded the statement of Gujari Khatoon, wife of Bijali Mian.

It has come in the prosecution's evidence that the accused persons were cutting bamboos when the members of the prosecution party had gone there and protested their cutting of bamboos on which an altercation took place. At this juncture when an altercation has taken place between the accused persons and the prosecution party, it cannot be inferred that the accused persons had shared common object to cause death of Jumrati Mian. The altercation between the parties took place at the spur of the moment and intention to cause death of Jumrati Mian cannot be imputed on all the accused persons.

In the aforesaid facts, we hold that all that the prosecution has established is that Hussain Mian, Chhathu Mian, Budhan Mian @ Budhu Mian and Bariar Mian @ Barar Mian were present at the place of occurrence and at the time of occurrence. They have participated in the altercation which took place between them and the members of the prosecution party and to that extent their participation in the occurrence is established. But their participation in the occurrence was more in the nature of self-defence. They have produced copies of the FIR in Birni P.S. Case No. 115 of 1995, sale-deed of the land and their injury report.

The learned trial Judge has held that the prosecution has proved that Jumrati Mian has died due to head injuries which were caused by Juman Mian.

In the above facts, we hold that the prosecution has failed to prove the charge under section 302/149 IPC framed against the appellants. These appellants did not share any common object with Juman Mian to cause death of Jumrati Mian.

Accordingly, their conviction under section 302/149 IPC is set-aside.

Dr. Shashi Bhushan Choudhery, who has proved the injury report pertaining to injuries caused to Bhola Mian, Razaque Mian, Garbali Mian and Jumrati Mian, has been examined as P.W.11. On 21.11.1995 at about 2:00 p.m, he has examined Bhola Mian and found one incised injury on his forehead, measuring 5"x 1/3" bone deep. According to the doctor, the injury was caused within 12 hrs. and such injury may be caused by tangi. At about 1:50 p.m on 21.11.1995, P.W.11 has examined Garbali Mian and found one incised wound measuring 3"x 1/3" on his scalp, bone deep. The injury on Garbali Mian has caused fracture of his scalp bone. The doctor has deposed that the patient was referred to RMCH for further treatment.

In his cross-examination, P.W. 11 has admitted that he has examined Garbali Mian and Jumrati Main without police requisition and he did not hand over the injury report to the investigating officer personally. He says that the injured persons themselves brought a police requisition on the basis of which he has examined them clinically. To a suggestion of the defence that the person examined by him was not Garbali Mian, P.W.11 admits that the mark of identification found on him can be found on many persons. He has further admitted that LTI of the injured persons was not taken by him on the register in which injury reports have been recorded. Apparently, the defence taken by the accused persons was that the injury reports produced by the prosecution do not pertain to the alleged injuries caused to Garbali Mian, Jumrati Mian, Razaque Mian and Bhola Mian and they did not suffer any injury in the altercation which has ensued between the parties on 21.11.1995.

However, we find that the prosecution has proved that Bhola Mian has suffered one incised injury which is attributed to Bariar Mian. One incised wound was found on the scalp of Garbali Mian which was grievous in nature. This injury was caused by Chhathu Mian. The appellant namely, Bariar Mian @ Barar Mian has been charged under section 326 IPC for causing grievous hurt to Garbali Mian. Bhola Mian-P.W.1 has stated that in the morning when he heard hulla raised by Garbali Mian and Jumrati Mian he rushed to the place of occurrence, where he found that Juman Mian and Chhathu Mian were cutting bamboos and other accused persons were standing there. P.W.1 has stated that when Garbali Mian and Jumrati Mian asked them not to remove bamboos, Juman Mian and Bariar Mian claimed that bamboos belong to them. In the altercation, Juman Mian gave one tangi blow on the head of Jumrati Mian and when Garbali Mian tried to save him Bariar Mian gave tangi blow on his head. P.W.1 has further stated that when he tried to save them Hussain Mian gave one tangi blow to him. The informant-P.W.2 has also alleged that Bariar Mian gave tangi blow to Garbali Mian. There is specific allegation of assault made by other eye-witnesses against the appellants, namely, Bariar Mian and Hussain Mian.

The charge framed against Chhattu Mian and Bariar Mian under section 324 IPC has failed.

In the aforesaid state of affairs, we are of the opinion that it would not be safe to convict the appellant Bariar Mian @ Barar Mian for the offence punishable under section 326 IPC, rather he is liable to be convicted under section 325 IPC.

Accordingly, conviction of the appellant, namely, Bariar Mian @ Barar Mian under section 326 IPC and the sentence inflicted upon him for the said offence are set-aside.

The appellant, namely, Bariar Mian @ Barar Mian is convicted under section section 325 IPC and sentenced to undergo R.I for Five years with fine of Rs. 5,000/-. In default of payment of fine the appellant, namely, Bariar Mian @ Barar Mian shall undergo R.I for further one month.

The bail-bonds furnished by the appellant, namely, Bariar Mian @ Barar Mian is cancelled. He is directed to surrender before the court-below to serve the remaining sentence.

However, conviction of the appellant, namely, Hussain Mian under section 324 IPC and the sentence of R.I of two years inflicted upon him are confirmed. He has undergone imprisonment for more than three years.

In the above view of the matter, the appellants, namely, Chhathu Mian and Budhan Mian @ Budhu Mian, who are on bail, are discharged of liability of the bail-bonds furnished by them. The appellant, namely, Hussain Mian, who has undergone imprisonment of more than three years, is also discharged of liability of the bail-bonds furnished by him.

In the result, Criminal Appeal (DB) No. 301 of 2001 is partly allowed.

Let lower-court records be transmitted to the court concerned, forthwith.

Let a copy of the order be transmitted to the court concerned through 'FAX'.