Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.202 of 1990 =========================================================== 1. Md. Muslim son of Kalimuddin, 2. Azam son of Naushad, 3. Asarul son of Jhagru, 4. Sattar son of Tasnif, 5. Udua son of Mohiuddin, 6. Razaque son of Tasnif, 7. Md. Mashiyat son of Mohiuddin, 8. Allu alias Alauddin son of Ghafur, 9. Hoda son of Dabir, 10. Sallu @ Salahuddin son of Ghafur, 11. Md. Mujiya son of Kalimuddin, 12. Md. Mister son of Gharibul, 13. Aftab Alam son of Kalimuddin, 14. Zainul son of Dabir, 15. Shahabuddin son of Dabir, 16. Md. Khaja son of Naushad, 17. Barik son of Kalimuddin, 18. Md. Sikandar son of Tasnif, All residents of village, Mahila, P.S. Azam Nagar in the district of Katihar The State of Bihar Versus with .... .... Appellant/s .... .... Respondent/s Criminal Appeal (DB) No. 269 of 1990 =========================================================== 1. Kaimuddin son of Dabir Uddin, resident of village-Mahila, P.S. Azam Nagar in the district of Katihar Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance : (In CR. APP (DB) Nos. 202+269 of 1990) For the Appellant/s : Mr. Ashutosh Kumar, Adv Mr. Shoeb Alam, Adv Mr. Sajid Salim Khan, Adv Ms. Fauzia Shakil, Adv. For the Respondent/s : Mr. Ajay Mishra & Mr. D.K. Sinha, APPs. =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 17-07-2013 2 Since these two appeals arise out from common judgment dated 24.05.1990 passed by Sessions Judge, Katihar in connection with Sessions Trial No. 124/1989, hence these on being heard together are being disposed of by a common judgment with the consent of the parties. 2. Appellant Kaimuddin has been found guilty for an offence punishable under Sections 302 of the IPC and directed to undergo R.I. for life for offence under Section 148 of the IPC he has been directed to undergo R.I. for one year, under Section 307 IPC directed to undergo R.I. for 10 years while no separate sentence has been inflicted under Sections 302/149 IPC. Md. Muslim, Habib Azam, Asarul, Sattar, Udua, Razaque, Md. Mashiyat, Allu alias Alauddin, Hoda, Sallu @ Salahuddin, Md. Mujiya, Md. Mister, Aftab Alam, Zainul, Shahabuddin, Gharibul, Md. Khaja, Barik, Md. Sikandar have been found guilty for an offence punishable under Sections 148 IPC and directed to undergo R.I. for one year, under Section 302/149 IPC and directed to undergo R.I. for life and under Section 307 of the IPC whereunder directed to undergo R.I. for ten years with a further direction to run the sentences concurrently, have challenged the finding by filing above referred two appeals. 3. The prosecution case, in brief, as per Fardbeyan (Ext-4) of PW-20, Jagdish Mahto recorded on 20.11.1988 at about 1.30 P.M. at State Dispensary, Azamnagar before O/C, Azamnagar 3 disclosing therein that he along with his brother Meghu Mahto had gone to see his field as was being grazed by the animals. After seeing absence of she-buffalo they came to sweet potato field and sat there which they had taken on „Adhiya‟ from one Aslam. Some lands were settled in their favour by the Government. On 19.11.1988, he had harvested the paddy crop therefrom and in the aforesaid background, Jainul Sarkar, Muslim Sarpanch, Barik, Aftab of Village-Mahila along with 400-500 persons who were sitting under hidden condition and were armed with deadly weapons i.e., gun, country-made pistol, farsa, garasa, sword, suli, lathi, sik-har. Some of them were also armed with stone and some of them were indulged in cutting remaining paddy crops from the aforesaid settled land, encircled him along with his brother and indulged in pelting stones. He had claimed identification of Masimad, Azam, Khaja, Sk. Alladdin, Sk. Karim, Hoda, Manoriya, Asarul, Ejaz, Sikandar, Allu, Sallu, Israel, Munshi, Sk. Muslim, Sk. Barik, Sk. Jainul, Sk. Mustafa, Sk. Aftab out of whom Manoriya was armed with three knot, Abu Nasar was armed with gun, Ghulam was armed with Suli while rest were armed with Lathi, Bhala, Garasa, Sword, Farsa and stones. 4. He along with his brother ran there-from raising alarm. He fell down after sustaining one stone. Ghulam gave suli blow over his „Panjar‟. Others also began to assault him as well as his brother with lathi and farsa over which his brother Meghu Mahto tried 4 to escape but was shot at with fire-arm by Ibrahim. He fell down after sustaining injury. On hue and cry, Dudhnath Mahto, Phaiju Mahto, Sripati Mahto, Dasu Mahto, Sarjug Mahto came in his rescue who were also assaulted by accused persons. During course thereof, Sarjug Mahto was also shot at and on account of which he died. Meghu Mahto also died. Dudhnath, Phaiju, Sripati, Dasu also disclosed presence of Alauddin, Abbas, Shafaque, Bashir, Phuli, Hakimul, Mahtab, Khalil, Sattar, Mister, Matru, Motia, Wasim, Nizam, Ishaque, Shakur, Habib, Dhelu, Dablu, Nijam, Kalimuddin, Mukhia, Mahmuddin, Asauddin, Sahab, Jamal, Mustapha, Kamik, Imamuddin, Faizuddin, Pachhru, Nazim, Jabir, Arif, Majibul, Jamil, Ayyub, Farooque, Ashraful, Aslam, Mokhtar, Sipahi, Mulha Master as members of the mob. After death of Sarju Mahto and Meghu Mahto, they tried to take away dead body of Sarju and Meghu but seeing presence of ladies and gents in the field near Bandh, they made Sripati captive to save themselves who was later on released. After departure of the accused persons all the injured including the informant were taken to State Dispensary, Azamnagar where they were undergoing treatment. 5. On the basis of the aforesaid Fardbeyan Azamnagar P.S. Case No. 148/1988 was registered followed with investigation and after concluding the same, charge-sheet was submitted against the appellants including others who have faced trial 5 and ultimately met with the consequence, subject matter of these two appeals. 6. The defence case as is evident from mode of cross-examination as well as from the statement of the appellants recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence as well as of false implication. Habib as well as Alauddin during course of statement have stated that the land belonged to them and on the alleged date and time of occurrence when they had gone to see their field, they found the prosecution party indulged in harvesting the paddy crop which was protested by them and during course thereof they were assaulted by the prosecution party. Some persons intervened into the matter who might have assaulted the prosecution party in order to save the life and property of Habib and Alauddin. To support the same, DWs coupled with series of documents have been produced before the court. 7. While challenging the judgment impugned, the
Legal Reasoning
first and foremost ground taken on behalf of the appellants is with regard to manner of recording of statement under Section 313 Cr.P.C by the learned trial court and referring the same, it has been submitted that the learned trial court had not identified the incriminating materials against respective appellants individually as well as independently rather formed the questionnaire in consolidated form which the learned trial court confronted the same to the individual 6 appellants. By such process the appellants have felt aggrieved and they have found their interest at stake because of the fact that the judgment impugned contains those incriminating materials which independent appellants have not been confronted during course of statement recorded under Section 313 Cr.P.C. On account thereof, those incriminating materials which have not been placed before respective appellants is found to be forbidden for future use in terms of Subsection- 1 of Section 313 of the Cr.P.C. To put stress over the
Legal Reasoning
point learned counsel for the appellants has referred J.T. 2002 (6) SC 28, (2009) 7 SCR 653, AIR 2009 SC 2955, (2011) SCC 1, (1988) 4