Mainul Mian vs State of Bihar

P.N. Yadav, J.—All these four appeals arose out of one and the same judgment and order of conviction and sentence dated 28.6.2001 and 2.7.2001 recorded by Shri Prakash Kumar Jha, 6th Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 301 of 1998 arising out of Chanpatia (Sanichri) P.S. Case No. 19 of 1998 and as such they were heard together and are going to be disposed of by this common judgment. The appellants (hereinafter ''accused'' to be used for ''appellant'') Md. Isha Dewan, Hasmullah Dewan, Mainul Mian, Naimullah Dewan and Md. Ishtehar were convicted under sections 302/149 and 307/149 of the Indian Penal Code (hereinafter to be referred to as the Code) and each of them was sentenced to undergo rigorous imprisonment for life under the first count and rigorous imprisonment for seven years under the second count. They were also convicted and sentenced to undergo rigorous imprisonment for one year each u/s 148 of the Code.

The prosecution case as unfolded in the first information report and the evidence of the prosecution witnesses lay within a narrow compass. The informant Sharfuddin Dewan (P.W.5) in the morning on 2.2.1998 left his home for going to attend to nature''s call. In the process, he at about 6.00 A.M. reached his field situated about 200 yards west of his village. Small mango trees, TORI (mustard) and Bakula crops stood over his field. No sooner had he arrived there than he noticed presence of all the accused including Mokhtar who were armed with farsa, sword, gransa, lathi and pistol. They were uprooting Bakula and TORI crops and constructing a new ridge in the field. The informant protested against their high handed and illegal act of constructing ridge over his land after damaging and Uprooting the crops. This infuriated and enraged the accused persons and they uttering he be killed started assaulting him with various weapons they were having with them. The deceased Mohan Rai, Aas Mohammad (P.W.1) Abdul Nairn and some other persons arrived at the scene of the incident and they tried to intervene and save the informant. The deceased after he intervened was brutally assaulted by the accused persons as a result of which he sustained injuries and fell down unconscious. Aas Mohammad and Abdul Nairn were also inflicted assault. Sharfuddin Dewan (P.W.5) and the deceased were removed to M.J.K. Hospital, Bettiah where they were examined by Dr. Ved Bhanu Prasad (P.W.3). As the condition of the deceased was precarious he was referred to Patna Medical College Hospital, Patna where he succumbed to the injuries on the next day, that is, on 3.2.1998. The land dispute between the parties is said to have impelled the accused persons to commit the crime.

Fardbeyan of Sharfuddin Dewan was recorded by Krishna Paswan, Assistant Sub Inspector of Police, Bettiah Town Police Station at about 11.00 A.M. on 2.2.1998 at the aforesaid hospital. The fardbeyan was transmitted to Sanichri Police Station and then to Chanpatia Police Station for registration of the case. On the basis of fardbeyan referred to above Chanpatia (Sanichri) P.S. Case No. 19 of 1998 was registered on 4.2.1998. Gajendra Prasad Singh (P.W. 10), Officer Incharge of Sanichri Police Station entrusted Sudarshan Prasad Singh (P.W.8), Sub Inspector of Police with the task of conducting investigation. He reached the house of the informant late in the evening on 3.2.1998 and inspected the place of occurrence in the next morning, that is, on 4.2.1998. However, P.W.10 took over charge of investigation from him on 4.2.1998 at the place of occurrence itself. He recorded statement of witnesses and handed over charge of investigation to Sanjay Kumar Malvia (P.W.7), Sub Inspector of Police, Sanichri Police Station, who, as the investigation was complete collected the postmortem examination report and after complying with certain legal formalities submitted chargesheet against the accused persons. As the accused Mokhtar was found to be juvenile his case was separated to face trial before the juvenile court.

It would appear that the informant (P.W.1) and Kanti Rai (P.W.2), who is the brother of the deceased during investigation filed protest petition alleging therein that the Investigating Officer (P.W.10) was not properly and fairly recording statements of prosecution witnesses with intent to helping the accused and accordingly a prayer was made for recording statement of the witnesses u/s 164 Cr. P.C. Ram Babu Tripathi, Judicial Magistrate, Bettiah (P.W.11) in accordance with the order of the Chief Judicial Magistrate, Bettiah recorded statement of Sharfuddin Dewan (P.W.5), Aas Mohammad (P.W.1) and Kanti Rai (P.W.2) besides five other witnesses whose names need not be cited here as they were not examined at trial.

As gathered from the trend of cross examination of the prosecution witnesses the defence set up by the accused persons seemed to be that of total denial and false implication out of sheer enmity emanating from long drawn land dispute. The accused Mainul Mian also took the plea of alibi saying that during the relevant period of time he was suffering from jaundice and he was undergoing treatment under Dr. Ashok Kumar Singh (D.W.1). However, the learned court below considering and appreciating the evidence brought on records negatived the plea of defence and recorded findings of guilt and convicted and sentenced the accused as stated above.

The evidence of the prosecution witnesses has been spelt out in great detail by the trial court in its judgment and the same need not be reproduced here. However, it would be relevant and convenient to analyze the testimony of the witnesses, with brevity, in order to appreciate rival contentions put forward at the bar.

The informant Sharfuddin (P.W.5) Aas Mohammad (P.W.1), Kanti Rai (P.W.2) and Dukhan Dewan (P.W.9) claimed to be the eye witnesses to the incident and as such their evidence assumed important significance. We shall begin with a brief discussion of the evidence of P.W.5. He supporting the prosecution version in its entirety stated when he went to his field in the morning referred to above he saw the accused persons damaging and uprooting his Bakula and TORI crops grown by him in his field and they were making new ridge thereon and on protest being made by him the accused Hasmullah ordered and instigated his associates to kill him and as such he raised alarm and in the meanwhile the accused persons started assaulting him with the weapons they were having with them. He further stated that the accused Hasmullah, Naimullah, Mokhtar and Mainul were having lathi while Ishtehar and Md. Isha were armed with gransa. Naimullah Mian was said to have a pistol as well. He specified that Hasmullah dealt lathi blow on his head as a result of which it was broken and started bleeding, Md. Isha assaulted him with blunt portion of gransa on his right arm, Naimullah also dealt lathi blow on his right arm as a result of which it got fractured, Ishtehar inflicted blow on his right leg and left palm with blunt portion of gransa and Mainul Mian dealt lathi blow on his right leg causing fracture. P.W.5 added in pursuance of alarm raised by him P.W.1, P.W.2 and Abdul Nairn and the deceased had arrived at the scene of incident and when they tried to save him from further assault the accused Hasmullah dealt lathi blow on the head of the deceased and Naimullah assaulted him on the same portion of the head with the butt of the pistol as a result of which he sustained injuries and the affected part of his head got suppressed and Istehar dealt a blow on right side of his abdomen with blunt portion of gransa while Aas Mohammad (P.W.1) was assaulted by Naimullah as a result of which he sustained injuries on his head and right hand. According to the witness, Abdul Nairn was also assaulted by Ishtehar with blunt portion of gransa but the said Abdul Nairn was not examined at trial. It is in evidence of P.W. 5 that the deceased had acted as an arbitrator to settle the land dispute between the informant and Md. Isha and on the account the accused were angry and aggrieved with him. P.W.5 claimed right, title, interest and possession over the land by virtue of his being grand son of Gulzar Dewan the recorded tenant.

Narration of the incident leading to infliction of assault by the accused persons with their respective weapons on the informant (P.W.5) and the deceased Mohan Rai made by Aas Mohammad (P.W.1), Kanti Rai (P.W.2) and Dukhan Dewan (P.W.9) was identical to that rendered by the victim informant and as such verbative re-production of the same need not be made to make the judgment un-duly and unnecessarily cumbersome and unwieldy. It may, however, be stated that P.W.1, P.W.2, Mohan Rai (deceased) and Abdul Nairn arrived at the scene of incident from their village while P.W.9 reached there from the mosque after hearing alarm coming from the scene of the incident and the deceased and P.W.1 were assaulted when they intervened and tried to save the informant. Non examination of injuries of P.W.1 by some doctor cannot render his presence at the time and place of occurrence doubtful. Even if the witnesses arrived at the scene of incident a bit late after hearing hulla and they might not have seen initial quarrel and exchange of hot words but they must have witnessed later part of assault on the informant and fatal blow on the deceased.

No medical evidence was brought on records in support of injuries sustained by Aas Mohammad (P.W.1) and Abdul Nairn who were also said to have been assaulted by the accused nor did the informant (P.W.5) whisper in his fardbeyan regarding presence of Kanti Rai at the time and place of occurrence. P.W.1 did not appear to have consulted doctor as he had sustained minor and superficial injuries and so no medical evidence was expected to be brought on records. Testimony of P.W.2 an eye witness cannot be rendered doubtful merely because his name does not figure in the first information report.

The evidence of the eye witnesses is quite consistent and corroborative. They were subjected to long cross examination but no infirmity or lacuna was elicited to discredit their testimony. Statement of P.W.1, P.W.2 and P.W.5 was also recorded u/s 164 Cr. P.C. Their statement rendered in the court, broadly speaking, is similar to that made by them u/s 164 Cr. P.C. as well as the fardbeyan of the informant with the only difference that they made general statement u/s 164 Cr. P.C. regarding infliction of assault by all the accused persons with various weapons which they were armed with and they did not describe the particular weapon which was in possession of each individual accused whereas in the court the witnesses specified and assigned particular weapon in the hand of each of the accused. The informant (P.W.5) also made general allegation against all the accused persons in his fardbeyan. The fardbeyan or the first information report is not encyclopedia containing all minute details. Besides P.W.5 must be shocked and perplexed or he might not be remembering respective weapons in the hand of individual accused at the time his fardbeyan was recorded. It appears that the witnesses being rustic and illiterate villagers when asked about the incident they at one stretch delivered a kind of general lecture regarding the incident witnessed by them in their statement u/s 164 Cr.P.C. The difference or inconsistency just pointed out above can by no stretch of imagination be said to be material contradiction adversely affecting the edifice of the prosecution case. All this can at best be said to be minor omission and not at all vital to the case.

Exaggeration or embellishment made in evidence in court does not necessarily change nature of case. Similar view was taken in the case of Sunil Kumar vs. State of NCT of Delhi 2004 SCC(Cri)1055. The details regarding weapon in the hand of individual accused and specific assault attributed to the accused furnished by the witnesses in their deposition in the face of absence thereof in the fardbeyan and statement recorded u/s 164 Cr.P.C., even if treated as exaggeration or embellishment, did not change the nature of the case.

P.W9 in his cross examination stated that he in the early morning alongwith several other persons including Hasmullah, Mainul Mian and Isha gone to the mosque for offering NEMAZ and the aforesaid persons did not accompany him to the place of occurrence. His this statement cannot be interpreted to mean that the accused Mainul Mian, Hasmullah and Isha were not present at the time and place of occurrence. The witness was not asked as to whether the aforesaid accused went to the place of occurrence alongwith him. It is quite possible that the accused referred to above had left the mosque after offering their NEMAZ earlier than the witness. It is not essential that all the persons offering NEMAZ would leave the mosque together.

In view of what has been stated and observed above, the contention that the eye witnesses have made fundamental departure while deposing in the court from their previous statement recorded u/s 161 Cr.P.C. and thereby they have completely changed the nature of the case and their contradictory and discrepant statement cannot form the basis of conviction is totally devoid of merit and force and the same must be rejected outright.

Credibility of testimony of witnesses depends upon a judicial evaluation of the entire facts and circumstances brought on records and not on isolated scrutiny of a particular piece of evidence. On consideration and evaluation of totality of the scenario and the evidence available on the record it would be crystal clear that despite certain discrepancies, inconsistencies and embellishments arising from minor omissions made by the witnesses while deposing years after the date of occurrence the core and broad futures of the prosecution case remained intact.

Medical evidence is also consistent with the eye witness account of the incident. Dr. Ved Bhanu Prasad (P.W.3) examined the informant and injured witness (P.W.5) at M.J.K. Hospital, Bettiah on 2.2.1998 at about 8.25 A.M. and he found (i) lacerated wounds over scalp middle 2" x 1/2"x1/4" ; (ii) lacerated wound over right leg 1/2" x 1/4" x 1/4" with swelling of the leg 3" x 2"; (iii) swelling of right forearm 4" x 2" and (iv) lacerated wound over left palm near thumb of left hand 2" x 1/2" x 1/2". Injuries No. ii and iii were grievous while injuries No. i and iv were simple in nature.

P.W.3 also examined the deceased Mohan Rai and found lacerated wound over scalp, left parietal region of dimension of 1/2" x 1/4" x 1/4" and as the condition of the deceased was very serious he referred him to P.M.C.H., Patna. There is nothing in cross examination of the doctor to created doubt in his statement or injury reports.

Dr. Ashok Yadav (P.W.6), posted at P.M.C.H., Patna conducted autopsy on the dead body of the deceased at about 2.30 P.M. on 4.2.1998. He found one abrasion 1" x 1/2" over right side of waist and one bruise 3" x 2" on left side of the head above left arm of the deceased. The injuries were antimortem and while the first injury was simple the second was grievous and dangerous to life in ordinary course of nature. The injuries were said to have been caused by hard and blunt substance. In the opinion of the doctor, the cause of death was concussion, shock and haemorrhage resulting from the aforesaid injuries. The time elapsed since death was said to be within 12 to 24 hours. The evidence of the doctor corresponds to the time and the manner of incident and the weapons used in inflicting injuries on the deceased. There is nothing in his evidence to discredit his testimony and postmortem examination report. The contention that only one injury on the head of the deceased was dangerous to life and that was in all probability caused by a single blow and in that view of the matter the case would not come within the purview of section 300 of the Code has got no merit and substance. In a catena of decisions rendered by the Apex Court and the High Courts it has been held that even a single blow causing death would land the accused u/s 302 of the Code. In the instant case even if it is assumed that the deceased died of single blow clause 3rdly of section 300 of the Code would apply and the assailant would be liable u/s 302 of the Code.

It has been submitted on behalf of the accused that P.W.3 found a solitary injury on the body of the deceased at 8.20 A.M. on the date of occurrence while P.W.6 found two injuries although the perpetrators of assault were six persons as per version laid in the first information report and again bruise inflicted with a club or lathi must be elongated and irregular and in the present case the assailants were said to have assaulted the victims with lathi but the doctor''s evidence does not speak of presence of elongated and irregular bruise and all this creates doubt in the prosecution version regarding the manner in which and the number of persons who inflicted assault on the victims. The submission is non meritous. It is also the settled principle of law that when some inconsistency occurs in medical evidence and ocular evidence the fatter would prevail.

Abdul Rahman (P.W.4) is seizure witness. He testified to blood stained earth, a lathi fitted with spear and uprooted crops of Bakula and TORI having been seized from the place of occurrence and preparation of seizure lists in his prsence. He and one Rajendra Prasad Srivastava put their signatures on the seizure lists.

Sudershan Prasad Singh, Sub Inspector of Police (P.W.8) stated that he was asked by the Officer Incharge (P.W.10) to conduct investigation in the evening on 3.2.1998 and he proceeded for and reached the village home of the informant at 7.15 P.M. on the same day. He inspected the place of occurrence at about 7.10 A.M. on 4.2.1998. He found uprooted crops of Bakula and TORI and new ridge constructed in the field of the informant. He seized blood stained earth, a small bundle of uprooted crops of Bakula and TORI and a lathi fitted with spear from the place of occurrence and prepared seizure list in presence of witnesses. He prepared sketch map of the place of occurrence. In his cross examination, he admitted that he did not send blood stained earth for chemical analysis. As already stated P.W.10 snatched away investigation from him at the place of occurrence itself on 4.2.1998 and as such it was the duty of P.W. 10 to get blood stained earth examined by chemical analyst but he did not do so for the reasons best known to him.

Gajendra Prasad Singh (P.W.10) after relieving P.W.8 of the task of investigation carried out investigation himself. He recorded statement of witnesses in the midst of protest petition filed against him alleging therein that he was not properly and fairly recording statement of the witnesses to help the accused. His conduct in making investigation does not seem to be free from suspicion and doubt. His statement contradicting evidence of the eye witnesses cannot be accepted in view of serious allegation levelled against him in Protest Petition.

Sanjay Kumar Malvia (P.W.7) merely collected postmortem examination report and submitted chargesheet after obtaining permission of superior police officers as investigation was already complete.

Non examination of some of the witnesses such as Manager Ojha, Birendra Rai and Abdul Nairn who had arrived at the scene of the incident, in itself, cannot affect the veracity of the prosecution case when the testimony of eye witnesses, to wit, P.W.5, P.W.1, P.W.2 and P.W.9 has been found to be trust worthy and reliable and was supported by medical evidence as well as objective findings of the Investigating Officer (P.W.8). Besides, the case is to be decided on what evidence is available on record and not on what evidence would have come.

Cases are to be decided on broad probability. In the case at hand the incident leading to infliction of assault on the informant and the deceased took place at about 6-7 A.M. on 2.2.1998. The fardbeyan was recorded at the hospital at 11.00 A.M. on the same day. The F.I.R, must be said to have been lodged promptly. Certain minor inconsistencies and omissions in the statement of the witnesses made in the court vis a vis their statement recorded by the Investigation Officer (P.W. 10) are of no consequence.

The fardbeyan was recorded at Bettiah Hospital on 2.2.1998. It was sent to Sanichri Police Station on 3.2.1998. Sanichri Police Station transmitted the same to Chanpatia Police Station on 3.2.1998 on the basis of which the first information report was drawn up and the case was registered on 4.2.1998. It was put up before the Chief Judicial Magistrate on 5.2.1998. The fardbeyan is free from exaggeration and embellishment. Had the informant concocted the prosecution case after due deliberation and thought he would have given minute details of infliction of assault by each and every individual accused at particular part of the body of the victims as well as the particular weapon in the hands of the individual accused but it was not done so giving an opportunity to the accused to criticise evidence of the eye witnesses by seeking contradiction in the ocular evidence rendered in the court from the contents of the fardbeyan. The first information report is thus otherwise reasonable and trustworthy and hence delay in despatch of the first information report to the Magistrate cannot be said to be fatal to the prosecution case. Moreover, technicality should not be allowed to outweigh the course of justice. The delay in despatch of the first information report to the court, if any, occurring in this case must be ignored.

The accused persons were convicted u/s 302 read with section 149 of the Code. Essence of section 149 which deals with vicarious liability of the members of the unlawful assembly is that offence is committed in prosecution of common object of such assembly and the members of the assembly knew that such offence is likely to be committed in prosecution of that object. Direct proof of all the members sharing common object or having knowledge that a particular offence is to be committed in prosecution of common object of the unlawful assembly is seldom available and such common object is to be inferred from the circumstances appearing from the proved facts and circumstances. It is essential for application of section 34 of the Code that the person who instigates or aids the commission of crime must be physically present at the actual commission of crime for the purpose of promoting the offence but the mere presence in the unlawful assembly without commission of any overt act or participation in the commission of crime may fasten vicarious liability u/s 149 of the Code. Mere membership of the unlawful assembly would attract the mischief of section 149. The plea that definite roles have not been assigned to the accused and hence section 149 is not applicable is untenable and un-acceptable. It is not necessary to determine as to which of the accused persons forming unlawful assembly inflicted what particular injury in course of the incident. It is also worth mentioning that failure on the part of the witnesses to narrate whether the injuries were caused by blunt or sharp side of the weapons is also of no consequence.

When people go armed with lethal weapons to take possession of land which is in possession of others, they must have the knowledge that there would be opposition and the extent to which they were prepared to go to accomplish their common object would depend on their conduct as a whole. In the case at hand six persons having armed themselves with various lethal weapons had gone to the field of the informant and they uprooted the crops and constructed a new ridge over the same and on protest some of them assaulted the informant as well as the deceased. The incident took place in a sequel to land dispute between the informant and the accused. The deceased was attacked and inflicted fatal blows for, he had intervened to save the informant and also because he had acted as a Punch to get the matter of dispute settled between the informant and the accused on account of which the latter was aggrieved with him. The members of the unlawful assembly appeared to be prepared to take forcible possession of the land of the informant and the murder must be held to be immediately connected with the common object and therefore the case fell within purview of section 149 of the Code. The accused persons were rightly convicted u/s 302 read with section 149 of the Code.

The accused persons stood convicted u/s 307 read with section 149 of the Code as well. While considering the charge u/s 307 read with section 34 of the Code the court is required to see whether the act was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder vide the case of Hari Kishan Vs. Sukhbir Singh and Others, . In the case, we are in seisin of all the accused persons were armed with various weapons. The victim informant (P.W.5) was unarmed and alone in the beginning as none of the witnesses nor the deceased had reached there. Had the accused intended to kill him they would have easily eliminated him. Obviously common intention to kill him was lacking. So the accused cannot be convicted u/s 302 read with section 149 but they can well be said to be liable for causing grievous injuries to the victim. Accordingly conviction and sentence of the accused under sections 307/ 149 of the Code are set aside and they are convicted u/s 325 read with section 149 of the Code and are sentenced to undergo rigorous imprisonment for three years each thereunder.

It would appear that all the five accused persons were convicted u/s 148 of the Code by the trial court but as per evidence available on records only the accused Naimullah, Ishtehar and Isha were armed with deadly weapons inasmuch Naimullah was having pistol and Ishtehar and Isha were armed with garasa while the other two, namely, Hasmullah and Mainul were having lathi and as such only Naimullah, Ishtehar and Md. Isha would be liable u/s 148 of the Code and the accused Hasmullah and Mainul would come within the purview of section 147 of the Code. Accordingly, conviction and sentence of Naimullah, Ishtehar and Md. Isha u/s 148 of the Code recorded by the court below are maintained and confirmed and conviction and sentence of the other two accused, namely, Hasmulla and Mainul thereunder are set aside but they are convicted and sentenced to undergo rigorous imprisonment for one year each u/s 147 of the Code. With modification in conviction and sentence as indicated above, the appeals are dismissed. The accused Hasmulla Dewan is in jail custody. Let him serve out the remainder of sentence. The appellants Naimulla Dewan, Mainul Mian, Md. Isha and Ishtehar are on bail. Their bail bonds are cancelled. Let them be directed to surrender themselves in the court below within four weeks to serve out sentences awarded to them failing which the trial court shall take coercive steps for procuring their arrest/surrender.

Mridula Mishra, J.

I agree.