Criminal Appeal (D.B) No.752 of 2004 With Criminal Appeal (D.B) No.639 of 2004 With Criminal Appeal (D.B) No.448 of 2004 ------ Against the judgment of conviction dated 27.2.2004 and order of sentence dated 28.2.2004 passed by 3rd Additional Sessions Judge, (FTC), Jamtara in Sessions Case No.30 of 1997/155 of 2002. ------ Md. Hamid Ansari son of Punu Mian, resident of village Satuatanr P.S. and Dist-Jamtara…………………Appellant [Cr.App.(D.B) No.752 of 2004] 1.Azim Mian son of Punu Mian 2.Kamruddin Mian @ Kolha Mian son of Punu Mian 3.Bhutka Mian son of Rashid @ Tibhu Mian 4.Saffara Mian son of Rashid @ Tibhu Mian All resident of village Satuatanr, P.S and District -Jamtara…………Appellants [Cr.App. (D.B) No.639 of 2004] Punu Mian son of late Mahadali Mian All resident of village Satuatanr, P.S and District – Jamtara……………Appellants [Cr.App.(D.B) No.448 of 2004] VERSUS The State of Jharkhand……………………………….Respondent (in all cases ) For the Appellants : M/s.B.M.Tripathy, Sr. Advocate, Kaushik Sarkhen and N.N.Pd.Choudhary, Advocate For the State : Mr.V.S.Sahay, APP P R E S E N T THE HON’BLE MR. JUSTICE R.R.PRASAD THE HON’BLE MR. JUSTICE R.N.VERMA By Court: All these six appellants along with Kutlal Mian (who died during trial) and Rashid Mian @ Tibhu Mian (died during pendency of this appeal) were put on trial to face charges under Sections 302, 307, 325, 323/34 of the Indian Penal Code for committing murder of one Latif Mian and also for making an attempt on the life of the informant Shamsuddin Mian (P.W.8). The appellant Md. Hamid Ansari was also put to charge under Section 27 of the Arms Act. The trial court, vide its judgment of conviction dated 27.2.2004 while acquitting the appellants under Sections 307 and 325 of the Indian Penal Code found them guilty for the said offences and convicted all of them for the offence punishable under Sections 302/34 and 323/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life for the offence punishable under Section 302/34 of the Indian Penal Code and further to undergo rigorous imprisonment for six months for the offence under section 323/34 of the Indian Penal Code and further appellant no.1 Md. Hamid Mian on being convicted was also sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act. All the sentences were ordered to run concurrently. The case of the prosecution as it appears from the first information report is that on 25.1.1995 at about 6.45 a.m. Latif Mian, brother of the informant Shamsuddin Mian (P.W.8) left home for coming to Karmatar Railway Station for taking a train. After a while, he raised distress alarm. On hearing this, the informant Shamsuddin Mian (P.W.8) rushed to that place followed by his sister Marjun Bibi (P.W.7). When they reached over there, they found the appellants surrounding and assaulting Latif Mian. When the informant tried to rescue his brother Latif Mian, the appellant Kamruddin @ Kolha Mian, Azim Mian and Bhutaka Mian made indiscriminate firing from their pistols but it did not hit anybody. Meanwhile, the appellant Md. Hamid Mian fired shot upon Latif Mian, who on receiving gun shot injury fell on the ground and then, the appellants, Rashid Mian @ Tibu Mian (who died during trial), Kutal Mian (who died during trial), Punu Mian and Saffara Mian started assaulting Latif Mian by lathi and iron rod. Seeing all this, Marjun Bibi (P.W.7) laid herself over the body of Latif Mian to save him from being assaulted further but she was pulled off from the body of Latif Mian. Thereupon when Tibu Mian assaulted her with iron rod she fled from there. Meanwhile, when the informant Shamsuddin Mian (P.W.8) tried to save his brother, the accused Kutal Mian, Punu Mian and Saffara Mian assaulted him with lathi and iron rod. Seeing all these things, when Kutlal Mian (P.W.1) tried to intervene in the matter, he was also assaulted by Tibu Mian with iron rod. Meanwhile, Latif Mian died and then accused persons went away from there. After the occurrence Sub-Inspector of Police Sukeshwar Sharma (P.W.11) of Jamtara Police Station came to the village and recorded the Fardbeyan (Ext.5) on the same day at about 8.30 a.m. wherein the informant Shamsuddin Mian (P.W.8) stated that the accused persons did commit offence as stated above a day before he had caught a cow belonging to Punu Mian which it was grazing crop and brought it to his house but Punu Mian and other accused persons came and took away the cattle forcibly, for which there was a verbal altercation. On the basis of said Fardbeyan (Ext.5), a formal F.I.R (Ext.6) was drawn against all the appellants. The matter was taken up for investigation. During investigation, the Investigating Officer (P.W.11) held inquest on the dead body of the deceased and prepared an inquest report (Ext.8).Thereupon the dead body was sent for post mortem examination. Dr.Ashok Kumar (P.W.9) upon holding autopsy on the dead body found following injuries on the person of the deceased.
1. “wound of entry situated in the front of chest 1-1/2” below the right nipple. It was oval (1/2” x ¼”) and edges were inverted having a collar of abrasion which looked like a dark ring showing two zones – an ouster dark - red zone of abrasion and an inner zone of grease.
2. No wound of exit present.
3. Bluish diffuse swelling 3” x 2” on the back of right side of chest just below the right angle of scapula.” Neither fracture of skull nor ribs was found. The Doctor (P.W.9) issued post mortem examination report (Ext.3) with an opinion that death was caused due to shock and massive haemorrhage, as a result of fire arm injury. The Doctor (P.W.9) on the same day had also examined Margun Bibi (P.W.7) and found the following injury.
1. Abrasion (1/2” X14”) in left forearm near wrist.
2. Complain of pain near left shoulder joint. The said injury was found simple in nature. The injury report has been proved as Ext.4. On the same day the doctor had also examined the informant, Samsuddin Mian (P.W.8) and found the following injuries on his person. 1.Deffused swelling of left palm (3” x 2”) with abrasion (1/2” x ¼” and ½” x ¼ “ ) on the dorsum of the palm. On the basis of X-ray plate, doctor did notice of fracture of first meta carpal bone. (i) Tiny abrasion (1/4” x ¼ “) on the front of left knee. (iii) Tiny abrasion ¼ “ x ¼ “ on the index and middle finger. (iv) Diffused swelling 3” x 3” on the right calf muscle. All the injuries, according to doctor, were caused hard and blunt substance. Injury report has been proved as Ext.4/1. The Doctor on the same day had also examined one Kutlal Mian (P.W.1) and found the following injuries. 1.complain of pain in left arm 2.Tiny abrasion (1/4” x ½”) on left shoulder. The said injury, according to Doctor, had been caused by hard and blunt substance. The injury report has been proved as Ext. 4/2. Meanwhile, the Investigating Officer (P.W.11) did record the statements of witnesses and made inspection of the place of occurrence and after completion of investigation, submitted charge sheet against all the appellants for the offences under Sections 302/34, 307, 325, 323 of the Indian Penal Code and under Section 27 of the Arms Act and accordingly, when the cognizance of the offence was taken, the case was committed to the court of sessions where the accused persons were put on trial. During trial, the prosecution examined altogether 11 witnesses. Of them P.W.1 Kutlal Mian and P.W.2 Safaul Ansari did not support the case of the prosecution and thereby they have been declared hostile. P.Ws, 3, 4 and 5, Majid Ansari, Md. Madar Ansari and Md. Hanif Ansari were tendered for cross- examination. P.W.6 Jalil Mian is a witness to the inquest. P.W.7 Marjun Bibi, P.W.8, the informant Shamsuddin Mian and P.W.10 Shamsuddin Mian, (husband of Marjun Bibi) did testify in the same manner as the statement is there in the fardbeyan of the informant They did testify that when they reached over the place of occurrence, the accused persons made firing from the pistol upon the informant but it did not hit him. Meanwhile Md. Hamid Mian fired shot upon Latif Mian causing injury, as a result of which, he fell down on the ground and thereupon Marjun Bibi (P.W.7) laid herself over the body of Latif Mian so that he may not be assaulted further. While she had covered the body of her brother, the accused Tibu Mian assaulted her and then she fled away from there. Thereupon, the informant Shamsuddin Mian (P.W.8) when tried to rescue his brother, he was assaulted with iron rod and lathi by Majid Mian, Kolha Mian, Punu Mian, Saffara Mian and when Kutlal Mian (P.W.1) came to rescue Latif Mian, he was also assaulted by Tibu Mian with iron rod. After closure of the prosecution case, incriminating materials appearing against the appellants were put to them under Section 313 of the Code of Criminal Procedure to which the accused persons denied. Thereupon, the trial court having believed the testimonies of all the aforesaid three eye witnesses, P.Ws.7, 8 and 10 found the appellants guilty for committing murder of Latif Mian and thereby recorded the order of conviction and sentence as aforesaid which is under challenge. Mr.B.M.Tripathy, learned Sr. counsel appearing for the appellants submits that since the testimonies of all the three witnesses on the point of deceased being assaulted with lathi and iron rod are not corroborated to medical evidence, it is not worth acceptable. In this regard, it was pointed out that witnesses have testified that when Latif Mian was shot at by Md. Hamid, he fell down and then he was assaulted but not a single injury caused by any hard and blunt substance has been found on the person of the deceased and thereby the testimonies of the witnesses are deserve to be discarded. Further submission which was advanced on behalf of the appellants is that the court though has recorded the order of conviction under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code against all but none other than Md. Hamid has committed any overt act in the commission of murder of the deceased, though other appellants have been alleged to have surrounded the deceased but factum of surrounding by the appellants in the facts and circumstances of the case itself would not be sufficient to come to the conclusion that all the accused persons were sharing common intention. In this respect, it was further highlighted that till the informant Shamsuddin Ansari (P.W.8) reached over there, the accused persons did not do anything to the deceased, though they had surrounded the deceased but as soon as Shamsuddin Ansari (P.W.8) came over there, one of the accused Md. Hamid after seeing the informant (P.W.8), who had caught the cow of Punu Mian whose son is Md. Hamid he in all probability may have lost temper and fired shot at the deceased, the brother of the informant (P.W.8). Under the circumstances, the trial court has certainly committed illegality in recording the order of conviction and sentence against all the appellants and thereby the judgment of conviction and order of sentence is fit to be set aside. As against this, learned counsel appearing for the State submits that it is the consistent case of the prosecution that when Latif Mian left home for coming to Railway Station, he was surrounded in front of his house by the appellants and was assaulted and when he raised alarm, P.Ws.7, 8 and 10 came over there and saw Md. Haimd Mian firing shot upon the deceased, who fell down and when P.W. 7 and even P.W. 8 tried to save Latif Mian from being assaulted, further they were also assaulted. This was sufficient to demonstrate that the appellants were sharing the common intention and thereby the trial court is absolutely justified in recording the order of conviction and sentence. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution that when Latif Mian left home for coming to Railway Station, immediately thereafter he raised distress alarm. On hearing this, the informant Shamsuddin Mian (P.W.8) came out rushing of the house and was followed by P.W.7 and P.W.10 and found his brother has been surrounded by the appellants. According to the witnesses, the brother Latif Mian was being assaulted but as soon as they came, some of the appellants fired shot some says upon the informant, some says upon P.W.7 but admittedly, none of the witnesses sustained any gun shot injury. Thereupon one of the appellants Md. Hamid Mian fired shot upon Latif Mian, as a result of which he fell down and then when P.W. 7 and P.W.8 tried to save Latif Mian, they were also assaulted. According to P.W.8, he was assaulted by Kutlal Mian (since died), Punu Mian and Saffara Mian whereas P.W.7 was assaulted by the appellant Tibhu Mian (since died). It is significant to note that the witnesses have testified that the appellants had not only surrounded the deceased but had also assaulted when he fell down after receiving gun shot injury but the Doctor has not found any injury except the gun shot injury over the person of the deceased, though the deceased, according to the witnesses, were assaulted with Lathi and iron rod. Under the circumstances, the testimony of the witnesses that the deceased was assaulted by the appellants cannot be believed. However, it is consistent evidence of the witnesses P.Ws. 7, 8 and 10 that Md. Hamid fired shot causing gun shot injury to the deceased which proved to be fatal. The testimony of the witnesses gets corroboration from the evidence of the Doctor who found gun shot injury over the person of the deceased which was the cause of the death. Thereby the prosecution has proved its case beyond all reasonable doubt that Md. Hamid Mian committed murder of Latif Mian. Now the question which has cropped up before us as to whether in the facts and circumstances, the other appellants can be said to have shared common intention in committing murder of the deceased We have already noticed that the witnesses have testified that when they came out of the house, they found the appellants surrounding and assaulting the deceased but that part of the testimonies of the witnesses that the other accused persons assaulted the deceased before being shot at and even after he was shot at gets belied from the medical evidence. Thus, the fact remains that the prosecution has been able to establish that fact that the appellants had surrounded the deceased whether act of the appellants was in furtherance of their common intention to commit the murder of the deceased or not. We will have to go to the motive of the case where the prosecution has made out a case that the occurrence took place for the reason that P.W.8 had caught a cow belonging to Punu Mian while it was grazing crop and brought it to his house from where Punu Mian, father of Md. Hamid, had taken it forcibly for which there was verbal altercation on the previous day which fact does indicate that whatever grievance or animosity was there, it was there on the part of Md.Hamid and his father and not other accused persons. Under the circumstances, even if other accused persons had surrounded the deceased and did not do anything, they may not have been sharing the common intention which fact further gets support from the fact that till P.W.8 reached to the place of occurrence and even thereafter the appellants as per medical evidence can not be said to have assaulted the deceased. Only upon seeing P.W.8, the other appellants though have been alleged to have fired shot but it has not been believed by the trial court but the fact remains that whatever happens, it happens only when P.W.8 with whom Md. Hamid had animosity reached at the place of occurrence. Under the circumstances, even if the fact is proved that the accused persons had surrounded but it never indicates that all the accused persons were sharing common intention and thereby the trial court can certainly be said to have committed illegality in recording the order of conviction and sentence against all the appellants and thereby they except the appellant Md.Hamid Mian are acquitted of the charge under Section 302/34 of the Indian Penal Code. Coming to the other charge, it be recorded that, as per the evidence of P.W.8, he was assaulted by Kutlal Mian (since died), Punu Mian, Saffara Mian whereas P.W.7 was assaulted by Tibu Mian (since died) but the court below has convicted all the appellants for the offence under Section 323/34 of the Indian Penal Code, though no evidence is there that other than Kutlal Mian, Tibu Mian, Punnu Mian and Saffara Mianj had assaulted either P.W.8 or P.W.7 and therefore the appellants other than Punu Mian and Saffara Mian are acquitted even for the charge under Section 323/34 of the Indian Penal Code. Under the circumstances, we do find that Punu Mian and Saffara Mian have rightly been convicted for the offence under Section 323/34 of the Indian Penal Code. However, in the facts and circumstances, they are sentenced for a period already undergone. Coming to the case of Md. Hamid, we have already recorded that the prosecution has been able to establish its case beyond all reasonable doubt that it was Md. Hamid, who fired shot causing firearm injury to the deceased resulting into his death and therefore, the appellant Md. Hamid Mian instead of offence under Sectin 302/34 is convicted for the offence punishable under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act. He is imposed with the same sentences which have been passed by the trial court for both the offences. Accordingly, the appellants (in Cr.App.No.448 of 2004 and Cr.App.No.639 of 2004) who are on bail, are discharged from the liabilities of their bail bonds. Thus, Cr. Appeal (D.B) No.752 of 2004 is rejected. Whereas other appeals i.e, Cr.Appeal (D.B) No.448 of 2004 is partly allowed and Cr.Appeal (D.B) No.639 of 2004 stands allowed so far it relates to appellants other than Saffara Mian. So far the appellant Saffara Mian is concerned, his appeal is allowed in part. (R.R.Prasad, J.) ( R.N.Verma, J.) Jharkhand High Court, Ranchi, The 26th February, 2015, NAFR/N.Dev