Md. Sulta vs State of Bihar

Appellant Md. Sultan has been found guilty for an offence punishable under Section 307 of the I.P.C. and sentenced to undergo R.I. for seven

years as well as to pay fine appertaining to Rs.10,000/- and in default thereof, to undergo S.I. for three months, additionally, under Section 341 of the

I.P.C. and sentenced to undergo S.I. for one month with a further direction to run the sentences concurrently, under Section 324 I.P.C., though no

sentence has been passed, by the Additional Sessions Judge-8th, Muzaffarpur in Sessions Trial No.240 of 2000 by judgment of conviction dated

29.09.2015 and order of sentence dated 01.10.2015.

Muslima Khatoon (PW-5) while was admitted at P.H.C. Saraiya gave her fard-bayan on 07.07.1998 at about 22.30 hours before the police official

of the Saraiya P. S. in presence of her husband Md. Fida Hussain (PW-3), disclosing therein that on the same day at about 8.00 P.M. while she along

with her husband and children were taking meal, during midst thereof, her Bhainsur Md. Sultan came and disclosed that his father has ousted him out

from the house while they are remained here. On this, she disclosed that as he has committed wrong, therefore, he has been ousted. He assaulted

with fist and slap. Her husband began to raise alarm, whereupon Md. Alam, Md. Suleman and Md. Azam came, out of whom, Md. Alam was armed

with farsa and Md. Suleman and Md. Azam were armed with lathi and they just after arrival, began to abuse and during midst thereof, Md. Sultan

took farsa from the hand of Md. Alam and inflicted a blow causing injury over her head. She fell down. Her husband began to lift and during course

thereof, Md. Suleman and Md. Azam assaulted him with lathi, fists and slaps. On hue and cry, Md. Abid, Md. Sattar, Md. Mustafa along with others

came, who intervened. The motive for the occurrence has been shown on account of dispute over partition amongst both the brothers.

After registration of Saraiya P. S. Case No.122 of 1998, investigation commenced and after concluding the same, chargesheet has been submitted,

which happens to be the basis of 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 the prosecution party illegally got the land executed in their favour by the father of the appellant,

which was objected and in the aforesaid background, instant case has been launched taking the police official as well as the doctor in their collusion.

However, nothing has been adduced in defence.

Prosecution had examined altogether seven PWs, who are PW-1, Gulam Mustafa, PW-2, Md. Abid, PW-3, Md. Fida Hussain, PW-4, Md. Sattar,

PW-5, Muslima Khatoon, PW-6, Dr. Baidhyanath Mishra and PW-7, Laurence Vadra, I.O. Side by side, had also exhibited signature of PW-3 over

fard-bayan as Exhibit-1, signature of informant as Exhibit-1/1, injury report relating to Muslima Khatoon as Exhibit-2 and injury report relating to Md.

Fida Hussain as Exhibit-2/1. As stated above, nothing has been adduced in defence.

While assailing the judgment of conviction and sentence, it has been submitted on behalf of learned counsel for the appellant that in the facts and

circumstances of the case, instead of convicting and sentencing the appellant, the learned lower Court ought to have acquitted the appellant including

others in the background of the fact that

A) all the independent witnesses have not supported the case of the prosecution,

B) from the evidence of PW-3 as well as PW-5, it is apparent that dispute with regard to partition of the land was coming in between since before,

C) PW-5 had admitted that her father-in-law had executed sale deed in her favour,

D) the I.O. had not found the place of occurrence in consonance with the evidence of PW-3 as well as PW-5,

E) there happens to be consistent version of the PW-3 as well as PW-5 that single blow was given, but the doctor (PW-6) had found three sharp cut

injuries over the person of informant,

F) there happens to be no explanation at the end of the prosecution how three sharp cut injuries have been found over the person of the informant and

in the aforesaid facts and circumstances of the case, the manner as well as genesis of occurrence as flashed on behalf of prosecution is found

suspicious one.

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

happens to be no inconsistency in the place of occurrence when the evidence of PW-3 as well as PW-5 is gone through. From the conduct of the I.O.

(PW-7), it is apparent that he had conducted deceptive investigation, so the case of the prosecution would not be, brushed aside on that very score.

Also submitted that manner of assault has consistently been asserted at the end of the PW-3 as well as PW-5 arraying the appellant to be the sole

assailant by means of farsa. That being so, the conviction and sentence recorded by the learned lower Court is fit to be confirmed.

PW-6 had examined PW-5 as well as PW-3 on 07.07.1998 at about 9.45 P.M.-10.00 P.M. and found the following:-

Muslima Khatton

of skull in the midline 3â€​ x 1â€​ Margin regular bone deep caused by sharp cutting weapon age of injury within four hours.

II) Wound over parietal area of scalp on the right side 2â€​ x ½â€​ margin regular caused by sharp cutting weapon. Age within four hours.

III) Wound over occipital area of scalp on the upper part 3†x ½†margin regular caused by sharp cutting weapon. Age with four hours. Nature

simple.

Fida Hussain

I) Abrasion over bridge of nose 1â€​ x ¼â€​ caused by hard blunt object. Age within four hours.

II) Bruise over shoulder of left side 3†x 1†caused by hard Patna High Court CR. APP (SJ) No.685 of 2015 dt.25-07-2018 6 blunt object. Age

within four hours. Nature simple.

During cross-examination, nothing substantial has been procured, save and except that injuries were firstly recorded in the injury report and then

thereafter, it has been copied.

PW-5 is the informant/ one of the victims. She had deposed that on the alleged date and time of occurrence, she along with her family members

were taking meal, accused Sultan, Alam and Azam came and began to abuse. On query, they disclosed that they have been ousted by their father

while you people are taking meal along with him. During midst thereof, Sultan took farsa from the hand of Alam and inflicted over her head causing

injury thereupon. Blood had oozed out. Her husband lifted and during course thereof, Sultan, Alam, Azam assaulted him with fists and slaps. On hue

and cry, witnesses rushed and rescued them. Then thereafter, they were taken to Saraiya Hospital where they got treated. Then thereafter, they have

gone to police station where her fard-bayan was recorded (Exhibited), identified the accused. During cross - examination at Par-5, she had disclosed

that after arrival at the police station, she had disclosed regarding the occurrence. In Para-9, she had stated that accused has not been given share in

the property left by her father-in-law. She got sale deed in her favour from her father-in-law relating to 8-9 kattha of land. In Para-11, she had stated

that she had seen accused residing in the same house, but now-a-days, he is not residing. Dispute arose with Sultan, when he shown his intention to

stay in the same house and with regard thereto, instant case has been registered. In Para-12, she had stated that whenever Sultan came, he used to

stay at the place of his Samdhi while they were residing in the house belonging to father of Sultan. In Para-14, she had stated that farsa was curved

shape. Farsa blow was given by Sultan forcibly as a result of which, she sustained injury having ten inch depth. She was taken to Police Station,

hospital. Blood spread over in the room where she was. At Para-17, she had stated that she had incorporated in the fard-bayan that marpit took place

in the background of partition. In Para-18, there happens to be contradiction relating to fard-bayan. In Para-21, she had denied the suggestion that no

such type of occurrence had ever taken place rather in order to grab the property belonging to the accused, this case has been registered.

PW-3 is her husband Md. Fida Hussain. He had deposed that on the alleged date and time of occurrence, while he along with his wife and

children were taking meal, Sultan, Alam, Azam, Suleman came, out of whom, Sultam had said that they are residing his house while he has been

ousted by his father, whereupon his wife had said as he has committed wrong, so he has been ousted.

On this, Sultan took farsa from Alam and gave blow over her head causing injury. He gone to lift her, he was assaulted by Alam and Azam, who

assaulted him with danda. On hue and cry, people came and took both of them to hospital. Police came at the hospital and recorded fard-bayan of his

wife. He was also treated, identified the accused. During cross-examination, he had admitted Sultan to be his elder brother and rest accused to be

related with him. At Para-4, he had admitted that Sultan happens to be the driver and for the last 30 years, he resides at Dhanbad along with his family

members. In Para-5, he had stated that he is not knowing whether the land has been transferred in their favour by his father. Then had shown

ignorance with regard to any kind of documents having executed by his father in favour of his wife under Paras-7 and 8. In Para-14, he had stated

that his father resided in the same house in which, he resides. Accused did not reside in the said house. Accused never resided in that house even

before the occurrence as he was residing at Dhanbad. Then, he had admitted that upto 25-30 years, accused had resided in the said house along with

his family members. In Para-16, he had stated that occurrence took place inside the house. Then had stated that it has got eastern front. At Para-17,

he had shown location of the aforesaid room. Furthermore, there happens to be contradiction. In Para-19, he had stated that after sustaining injury, his

wife became unconscious. He regained sense after 3-4 days, then again corrected as in the same night. In Para-20, he had stated that blood had

spread over the ground inside the room. Farsa semi-lunar in size, it was enough 1-1 ½†kilograms. Then had denied the suggestion that no such

type of occurrence had ever taken place rather having dispute over the partition, got this case filed in order to deprive the accused from his legal right.

PW-7 is the Investigating Officer, who had deposed that on 07.07.1998, after getting O.D. Slip, he came to Saraiya Hospital and recorded fard-

bayan of Muslima Khatoon, whereupon case has been registered, took up investigation, issued injury report for the injuries having over the persons of

the injured. On the following day, he had visited the place of occurrence, which happens to be the Verandah as well as Gali of the informant, but he

had not found any kind of incriminating material, recorded statement of the witnesses and then, completing the investigation submitted chargesheet.

During cross-examination at Para-1, he had admitted that he had not found any corroborative sign regarding commission of the occurrence at the P.O.

In Paras-2, 3 happen to be the contradiction relating to the respective witnesses. Rest witnesses have not supported case of the prosecution, hence

was declared hostile.

From the evidence available on the record, it is apparent that doctor (PW-6) had found three sharp cut injuries over the person of the informant.

I.O. (PW-7) had also found three injuries over the person of the informant. Against this, when the evidence of PW-3, the husband and PW-5, the

informant have been gone through, it is apparent that none of them had stated that there was repeated farsa blow at the end of the appellant. That

means to say, presence of three sharp cut injuries over the person of the informant is not at all found explained.

Furthermore, it is evident from the evidence of PW-3 as well as PW-5 that occurrence took place inside a room where they were taking meal.

There also happens to be consistent evidence that blood had spread over the ground. During course of inspection of the place of occurrence as is

evident, PW-7 was not at all shown the alleged P.O. that means to say, the room wherein occurrence had been alleged to have taken place rather he

was shown a place Verandah as well as Gali where marpit took place. Apart from this, he had not found any sign with regard to commission of the

occurrence. When the aforesaid infirmities are properly considered, it is found that it has got severe adverse impact upon the prospect of the

prosecution case as it shakes the trustworthiness of the witnesses, more particularly with regard to manner of occurrence as well as place of

occurrence. In the aforesaid facts and circumstances as stated above, the judgment impugned is found unsustainable in the eye of law. Consequent

thereupon, the same is set aside. Appeal is allowed. Appellant is on bail, hence is discharged from its liability.