Sheikh Idrish @ Idrish Mian vs State Of Bihar And Ors

This appeal under the proviso to Section 372 of the Code of Criminal Procedure has been filed by the appellant challenging the judgment dated 18.07.2019 passed by the learned Additional Sessions Judge-VI, Gopalganj in Sessions Trial No. 98 of 2013 arising out of Kateya P.S. Case No. 219 of 2012 by which respondent nos. 2 to 5 have been acquitted from the charges under Sections 341 and 307 of the Indian Penal Code.

The prosecution case is based on the written report submitted by the appellant Sekh Idrish Mian on 08.08.2012 to the Officer-in-Charge of Kateya, Gopalganj Police Station. In his written report, he has stated that on 07.08.2012, when his grandson and son of respondent no.5 Hazra Khatoon started quarreling, the accused Ashgar Mian physically striked his grandson using the leg. When he went to inquire about the said incident in the morning on 08.08.2012, in a pre-planned manner, Ashgar Mian assaulted him on his head twice with farsa. In the meantime, respondent no.3, Seikh Ibrahim assaulted him by farsa, which caused cut injury to his left wrist. Thereafter, when he fell down, respondent no. 4 Seikh Aslam, respondent no. 3, Seikh Ibrahim and respondent no. 5 Hazra Khatun assaulted him, as a result of which, he sustained cut injury on his elbow and ring finger of the right hand. In the meantime, when his grand daughter Husne Ara Khatun and grandson Chotu came to his rescue, the accused persons assaulted them also with lathi and danda, as a result of which, they also sustained injuries.

On the basis of the aforesaid written report, Kateya P.S. Case No. 219 of 2012 was registered under Sections 341, 323, 324 and 307 read with Section 34 of the Indian Penal Code against respondent nos. 2 to 5 and investigation was taken up.

On completion of the investigation, the Investigating Officer, Ram Pravesh Ram submitted charge sheet against the respondent nos. 2 to 5 under sections 341, 323, 324 and 307 read with section 34 of the Indian Penal Code.

On perusal of the First Information Report, the statement of the witnesses recorded under Section 161(3) and the Police Report submitted under Section 173 (2) of the Code of Criminal Procedure, learned Magistrate took cognizance of the offence and, after complying with the mandatory provisions prescribed under Section 207 of the Code of Criminal Procedure, committed the case to the Court of Sessions for trial.

The Trial Court explained charges to the respondent nos. 2 to 5 under Sections 323, 324, 341 and 307 read with section 34 of the Indian Penal Code to which they did not plead guilty. Hence, the trial commenced.

In order to substantiate the charges levelled against the respondent nos. 2 to 5, the prosecution examined 7 witnesses. They are P.W. 1 Husne Ara Khatun, P.W. 2 Police Chaudhary, P.W. 3 Jai Prakash Tiwary, P.W. 4 Seikh Idrish, P.W. 5 Nagendra Yadav, P.W. 6 Dr. Dharmendra Shah and P.W. 7 Rampravesh Ram.

Apart from the oral testimony of the witnesses, the prosecution proved the following documents during trial:-

i) Signature of the informant Sheikh Idrish on written report on the basis of which, the First Information Report was registered (Exhibit-1).

ii) Injury Report of Idrish Mian (Exhibit-2).

iii) Injury Report of Husne Ara Khatoon (Exhibit-2/1).

iv) Signature of the Investigating Officer, Ram Pravesh Ram on the Charge Sheet (Exhibit-3).

v) Writing and Signature of Officer-In-charge, Binod Kumar on the F.I.R.(Exhibit-4).

On the closure of the prosecution case, the incriminating materials, which came in evidence against the respondent nos. 2 to 5 were explained to them under section 313 of Code of Criminal Procedure. In their respective statements, the accused persons asserted that they have been falsely implicated in the case and are innocent.

However, on behalf of defence, neither any oral evidence was adduced nor any documentary evidence was produced.

On completion of the trial and after hearing the parties, the Trial Court recorded its findings in paragraph nos. 19 to 21 as under :

"19. I have gone through the entire deposition of prosecution witnesses and after meticulous scrutinizing of their statement, I find that the evidence of the witnesses is filled with discrepancies, contradictions and improbable versions which draws me to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused person.

As per the prosecution witnesses accused by using the sharp edge of weapon (Farsa) assaulted on the informant and other injured but doctors evidence in this regard is that the deceased has not sustained incised wound on the injured. P.W. 6 Dr. Dharmendra Prasad has stated in his examination that he has examined the injured Idrish Mia and found lacerated wound on left frontal and left eyebrow and he has also found lacerated wound on left occipital and left parital region. Injuries are simple in nature. Further he stated that he has also examined the injured Husanara Khatun and found pain and swelling and body ache which is simple in nature. In cross-examination this witness has stated that both of the injuries may be occurred by falling down, which is also supported by P.W. 5. This witness has also stated that when he examined the injured, there was no bleeding from the injury. Therefore, the injury report of the doctor falsifies the statements of witnesses, whereas the prosecution witnesses along-with informant has deposed that injuries are caused by sharp cutting weapons but the injury report shows that injuries are caused by hard and blunt substance i.e. lacerated wound.

Once, there is clear contradiction between the medical and ocular evidence coupled with severe contradiction in the oral evidence, clear latches in investigation, then the benefit of doubt has to go to the accused.

On perusal of the evidence of the P.W. 4, it also appears that this witness has admitted in para no.8 of his cross-examination that a case has also been instituted by the mother of Kashim regarding this incident. P.W. 5 has also admitted that Kashim Mia has instituted a case against the informant. P.W. 2 has stated in para no. 15 of his cross that Ashgar blew Farsa from distance of ten deg that may be 12 - 14 feet distance. P.W. 1 is the interested witness, therefore, the testimony of all the witnesses are not reliable for the conviction of the accused person u/s 341 and 307 of the I.P.C.

In the view of the facts and circumstances and the evidences available on the record of this case I came to the conclusion that the charged framed u/s 341 and 307 I.P.C. have not been stand proved beyond shadow of all reasonable doubts. But it transpires that the prosecution has able to prove the allegation against the only one accused namely Ibrahim Mia for the offence punishable u/s 323 IPC only and so accused Ibrahim Mia may be guilty for the offence punishable u/s 323 of the IPC. I, therefore, find and hold the aforesaid accused persons are not guilty for the offence punishable u/s 341 and 307 of the IPC and hence all the accused person are hereby, acquitted from the charges u/s 341 and 307 of the IPC. But accused Ibrahim Mia is found guilty for the offence punishable u/s 323 of the IPC and hence he is hereby, convicted of the offence punishable u/s 323 of the IPC accordingly bail bond of the convict Ibrahim Mia stand cancel and he is hereby, taken into judicial custody and other accused persons are discharged from their liabilities. Put up for hearing on the point of sentence."

Mr. Sanjay Kumar Pandey, learned counsel appearing for the appellant submitted that the trial court has totally discarded the evidence of repeated assault caused by dangerous weapon by the accused persons to the informant and Husne Ara Khatun. He submitted that the trial court failed to appreciate that the informant had sustained three cut injuries. He has further contended that since the injured witnesses had supported the prosecution case, the trial court ought to have held the respondent nos. 2 to 5 guilty for the charges framed against them. He argued that the trial court failed to appreciate that the Doctor and the Investigating Officer have fully corroborated the case of the prosecution. According to him, the evidence of witnesses were consistent and the findings recorded by the trial court are completely erroneous. He has contended that it would be manifest from the materials on record that the witnesses have corroborated the allegations made in the First Information Report. They have stated that Asgar Mian assaulted twice with farsa whereafter Seikh Ibrahim also striked with farsa upon the informant causing cut injury to his left wrist. He contended that since the corresponding injuries are there, the trial court ought to have convicted all the accused persons for the charge under section 307 read with 34 of the Indian Penal Code.

Per contra, learned counsel appearing for the State submitted that the trial court has appreciated the facts and the law involved in the case properly. According to him, the medical evidence is totally inconsistent with the prosecution case as alleged in the First Information Report. There is no injury caused by any sharp cutting weapon. The injuries sustained by the informant or Husne Ara Khatun are of simple and superficial nature. He contended that in view of the apparent inconsistency in the medical evidence and ocular testimony of the witnesses as also the contradictions, embellishments and exaggerations in the deposition of prosecution witnesses, the trial court has rightly come to the conclusion that the prosecution had failed to prove the charges under Sections 341 and 307 of the Indian Penal Code. He has contended that as far as the respondent no. 3 Seikh Ibrahim Mian is concerned, he has been convicted under Section 323 of the Indian Penal Code as the trial court found that there was sufficient evidence to hold him guilty for causing simple hurt.

We have heard the parties and perused the evidence on record.

P.W. 1 Husne Ara Khatun has stated in her deposition that when her grandfather went to inquire about the quarrel, which had taken place a day before, the accused Asgar assaulted him with Farsa on his head, as a result of which, he sustained injury over his head. He repeated the Farsa blow and when he tried to defend himself, he sustained cut injury on his right hand. Thereafter, he striked the third blow which resulted in cutting the finger of his left hand. Due to the aforesaid injuries, he fell down and started writhing in pain. Thereafter, the accused Aslam and Asgar Mian assaulted her with lathi. When she went on hearing cry of his grandfather, she was assaulted by Asgar and Aslam with lathi on her left foot and waist.

P.W. 2 Police Choudhary has stated in his deposition that the accused Asgar assaulted with Farsa causing injury on the head of the informant. Thereafter, the accused Ibrahim assaulted him with Farsa causing cut injury on the wrist of the informant. When the informant fell down, the accused Aslam and Hazra Khatun assaulted him with lathi.

P.W. 3 Jay Prakash Tiwary has stated in his deposition that Asgar striked thrice with Farsa causing injury on head, wrist of right hand and finger of the left hand of the informant and the accused Ibrahim assaulted him with lathi. When the grand daughter of the informant came to rescue, she was also assaulted by the accused persons.

P.W. 4 Seikh Idrish has stated that when he went to inquire about the quarrel, which had taken place between his grandson and the son of Hazra Khatun on 08.08.2012 at 8.30 A.M., the accused Ashgar assaulted him twice with farsa on his head causing cut injury. Thereafter, Ibrahim assaulted him with farsa causing cut injury on his wrist and when he fell down, the accused Aslam assaulted him with iron rod and Hazra Khatun assaulted him with bricks causing injury on the fingers of his right hand and elbow. When his grand-daughter Husna Ara Khatun and grandson Chotu came to defend him, they were also assaulted with lathi.

P.W. 5 Nagendra Yadav is a hearsay witness.

P.W. 6 Dr. Dharmendra Prasad had examined the injured informant, Sekh Idrish. He noticed the following injuries on his person :

i) Lacerated wound on left frontal and left eyebrow size 1" x ¼ x ¼"

ii) Lacerated wound left occipital and left parietal region size 1 ½" x ¼ x 1/6 "

iii) Lacerated wound left forearm 1 ½" x ¼" x 1/6 skin deep.

iv) Pain and swelling and cut on the Rt index finger

v) Rt. Hand swelling and bruise.

He opined that injury nos. 1 to 3 were simple in nature. He kept his opinion reserved as far as injury over occipital region and left parietal region was concerned till city scan of brain. He found other injuries to be simple in nature. On the same day, he had examined the injured Husne Ara Khatun. He noticed only pain and swelling on her left thigh on body. Her injuries were found simple in nature.

In cross-examination, he admitted that he did not receive any X-Ray plate or city scan report of the injured persons and the injuries found on their person could have been caused due to fall on earth or surface. He has also admitted that when he examined then, he did not notice any bleeding from the injuries caused to them.

From perusal of the aforesaid evidence, it would be manifest that P.Ws. 1, 2 and 3 have not supported the manner of assaulted, as alleged in the First Information Report. In the First Information Report, the informant has alleged that the accused Ashgar Mian assaulted him twice with farsa on his head and, thereafter, Seikh Ibrahim assaulted him with farsa causing cut injury on his wrist, but P.W. 1 has stated in her deposition that Asgar Mian assaulted her grandfather Seikh Idrish with farsa on his head causing cut injury. He striked the second blow with Farsa. Her grandfather tried to defend himself and, in the process, he sustained cut injury on his right hand. Asgar Mian striked the third blow with Farsa, which was defended by his grandfather and in the process, finger of his left hand got severed. Her grandfather fell on the ground and started writhing in pain. On hearing the commotion, when she came at the place of occurrence, Aslam and Seikh Ibrahim assaulted her with lathi.

On scrutinizing of the evidence of witnesses, we find that they have contradicted each other in material particular. The informant alleged that Asgar Mian striked twice with Farsa and Seikh Ibrahim also gave him a Farsa blow whereas P.W. 1 has stated in her deposition that Asgar Mian striked thrice with Farsa causing injury to her grandfather. She did not state that Seikh Ibrahim assaulted the informant with Farsa. On the contrary, she had stated that Seikh Ibrahim assaulted him with Lathi when he fell down. P.W. 2 Police Chaudhary has stated that both Asgar and Ibrahim striked with Farsa only once upon the informant and P.W. 3 Jay Prakash Tiwary has stated that the informant was assaulted by Asgar with Farsa and Ibrahim with Lathi. The injuries caused to the informant and Husne Ara Khatun were all simple. True it is that to justify conviction under section 307 of the Indian Penal Code it is not essential that bodily injury capable of causing death should have been inflicted, but in absence of any intervening circumstances, when the accused persons were armed with deadly weapons and only simple injury was caused to the informant and Husne Ara Khatun, an intent to cause death justifying conviction under section 307 of the Indian Penal Code cannot be inferred.

The witnesses examined on behalf of the prosecution have stated differently about the manner of assault and the respective weapons used by them.

The doctor, who examined the informant, did not find any injury caused by sharp cutting weapon though the allegation is that he was repeatedly assaulted with Farsa. The medical evidence is totally inconsistent with the ocular testimony of the witnesses.

Considering all these aspects, the trial court has rightly recorded its findings whereby the respondent nos. 2 to 5 have been acquitted from the charges under sections 341 and 307 of the Indian Penal Code.

The parameters for dealing with an appeal against the judgment and acquittal have been laid down by the Hon'ble Supreme Court in several cases. It has consistently been held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted.

In the case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is favourable to him under the principles of criminal jurisprudence that every person would be presumed to be innocent unless he is found guilty by a competent criminal court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial court.

By now, it is well settled that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the trial court.

Having heard learned counsel for the appellant and having gone through the findings recorded by the trial court, in our opinion, the findings cannot be held to be erroneous as there is no perverse appreciation of evidence.

In that view of the matter, there is no merit in this appeal.

The appeal is dismissed, accordingly.