Phool Mohammad and others vs State of Bihar

Honourable Justice, Smt. Sheema Ali Khan

No body appears on behalf of the appellants. Mr. Shailendra Kumar Jha was appointed as amicus curiae to assist the Court. This appeal is directed against the Judgment and order dated 31st January, 2000 passed in Session Trial of333 of 1997 by the Additional District & Sessions Judge IXth, Chapra, by which he has convicted the appellants of4 and 5, namely, Mahboob Alam and Haider Ali respectively, u/s 307 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 7 years. Whereas appellants of1 to 3, namely, Phool Mohammad, Imam Bakhsh and Khatib Ali @ Khatib Mian respectively, have been convicted u/s 307 / 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 7 years.

The prosecution case as narrated by the informant Md. Idrish, in brief, is that when he was going to give money a sum of Rs. 2000/- to Akbar Mian, for purchasing diesel, the bicycle on which he was riding was stopped by the Phool Mohammad on account of which he fell down. Imam Bakhsh caught hold of the informant and Phool Mohammad asked him to assault and kill the informant, as they were ready to fight a case under sections 302 of the I.P.C. It is alleged that Haider Ali gave a chhura blow on the informant causing injury on his collar bone. Mahboob Mian attempted to give a knife blow on the chest of the informant which he warded off by his hand and, thus, he sustained only injury on his right hand. The rest of the appellants inflicted lathi blows on the informant.

P.W. 1 Bir Bahadur, P.W.2 Rabindra Rai claim to be eye witnesses in this case. P.W.4 Md. Idris is the informant. I will first take up the evidence of P.W. 3, the doctor who examined Md. Idrish. The injury report indicates incised injury on the left side of the neck 11/2" x 1/6" x 1/4". The rest of the four injuries, are abrasions on the arms and the back. The doctor has opined that injury of1 was caused by sharp cutting weapon and is grevious injury. Injuries of 2, 3, 4, 6 and 7 are simple in nature and were caused by hard and blunt substance. The opinion in respect of injuries of1 and 5 were kept reserved for X-ray report. The doctor has in the supplementary opinion given by him stated that there is no X-ray report to indicate that the injuries were grievous and as such the same were treated as simple injury.

P.W.1 and P.W.2 have supported the prosecution version. In fact, P.W.1 is a chance witness who was returning home after purchasing certain items from the shop, when he was on the way just about 500 - 600 yards from the place of occurrence, he had witnessed the occurrence. He has stated that the police took the injured to the hospital for treatment. P.W.2 has stated that he had gone to Idrish Mian to give him money for the purpose of watering his field. When he reached near the house of Sahabuddin he saw the informant being assaulted by the other side (appellants). He has given details regarding the manner of assault. He has disclosed that his house is situated at a distance of about 20 yards from the place of occurrence and, as such, there can be no doubt regarding the presence of this witness at the place of occurrence. He denies the suggestion that Idrish Miyan received the injury because he fell down from the bicycle that he was riding. Attention of this witness has been drawn to the evidence that he has given before the I.O. wherein he has given details regarding the occurrence. The prosecution has not drawn the attention of the I.O. to the statements made by Rabindra Rai during the trial.

Counsel appearing for the appellants has drawn attention of the witness, regarding the occurrence during the trial of the case. It is submitted that P.W.2 has stated that he met Md. Idrish after 4/5 days of the occurrence. Whereas the I.O. stated in court that he had stated before him that he met Idris the very next day. This contradiction is hardly of any importance for the purposes of disbelieving either of the witnesses. It was the duty of the I.O. to meet the informant while investigating the case, and, as such, it cannot be said that this fact would be relevant for the purposes of disbelieving the prosecution version. The other discrepancies are so minor and do not go to the root of the allegations leveled against the accused persons.

The manner of the occurrence and assault indicates that there was no intention on behalf of the accused persons to kill Md. Idrish. Md. Idrish was beaten by five accused appellants. Two of them were armed with chura and others were armed with lathi. And there was no intervening circumstance which stopped the appellants from repeating the blow in such a manner as to cause a fatal injury to the informant. The intention of the accused persons is reflected in the manner in which injury has been caused. In this case the nature of the injuries, is simple.

This Court reaches to a conclusion that no case is made out u/s 307 of the Indian Penal Code. I, therefore, find that utmost Haider Ali would be liable for conviction u/s 324 of the I.P.C. Whereas the other accused persons would be liable for conviction u/s 323 of the. I.P.C. I accordingly alter the sentence of appellants of1 to 4 as period already undergone. The appellant Haider Ali remained in custody for three months and ten days. In this circumstance, he is discharged from the liability of his bail bond by altering the sentence to period already undergone. Further it is directed that he should pay a fine of Rs. 1000/- to Md. Idrish, failure to pay the fine would make him liable to undergo R.I. for six months.The trial court shall issue notice to Haider Ali to pay fine a sum of Rs. 1000/- which must be paid within a period of four months on valid service of notice. He will be discharged from the liability of bail bond on payment of fine. Similarly the appellants of1 to 4 are convicted u/s 323 of the I.P.C., the sentence is altered as period already undergone. They are directed to pay Rs. 200/- as fine, failure to pay the fine shall make them liable to undergo R.I. for 2 months. Same conditions for payment of fine shall apply to these appellants. They shall be discharged of liability of bail bonds on payment of fine. This appeal is dismissed with the aforesaid alteration in conviction and sentence.