Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA the Against judgment and order dated 20.10.2001 passed in S.Tr. No. 369/96 by the 5th Additional Sessions Judge, Samastipur. Criminal Appeal (SJ) No. 393 of 2001 ======================================================== 1. Md. Ojjair, Son of Md. Abid Husain @ Daftri. 2. Md. Zubbair, Son of Md. Abid Husain @ Daftri. 3. Md. Zahidullah @ Jahdullah, Son of Ashik Khan. All resident of Village-Deopar, P.S.-Pusa, District-Samastipur. Versus .... .... Appellant/s The State of Bihar. .... .... Respondent/s with Criminal Appeal (SJ) No. 412 of 2001 ======================================================== 1. Jamaluddin @ Bhola, Son of Late Md. Ayub. 2. Md. Shakil, Son of Md. Wahid, both residents of Village-Deopur, P.S.-Pusa, District-Samastipur. Versus .... .... Appellant/s The State of Bihar. .... .... Respondent/s with Criminal Appeal (SJ) No. 413 of 2001 ======================================================== 1. Md. Rais, S/o Israil. 2. Md. Matin @ Matin Khan, S/o Qadir Khan. 3. Satish Mahto, S/o Munnilal Mahto. 4. Md. Razi, S/o Israil. 5. Md. Shahid, S/o Md. Wahead. 6. Umesh Mahto, S/o Mahabir Mahtoon. All resident of Village- Deopur, P.S.-Pusa, District-Samastipur. Versus .... .... Appellant/s The State of Bihar. .... .... Respondent/s ======================================================== Appearance : (In CR. APP (SJ) No. 393 of 2001) For the Appellant/s : Md. Shahnawaz Ali, Adv. Md. Imran, Adv. Miss Arnita, Adv.
Legal Reasoning
For the Respondent/s : Mr. R. B. Roy “Raman” APP. (In CR. APP (SJ) No. 412 of 2001) For the Appellant/s : Mr. Md. Shahnawaz Ali, Adv. Md. Imran, Adv. Miss Arnita, Adv. For the Respondent/s : Mr. Mr. R. B. Roy “Raman” APP. Patna High Court CR. APP (SJ) No.393 of 2001 dt.12-12-2013 2 (In CR. APP (SJ) No. 413 of 2001) For the Appellant/s : Mr. Md. Shahnawaz Ali, Adv. Md. Imran, Adv. Miss Arnita, Adv. For the Respondent/s : Mr. Mr. R. B. Roy “Raman” APP. ======================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 12-12-2013 Anjana Prakash, J. 1. It has been submitted that the Appellant No. 1 of Cr. Appeal (SJ) No. 393 of 2001 died during the pendency of the Appeal and, therefore, his Appeal is dismissed as having become infructuous. 2. The Appellants Jamaluddin @ Bhola and Md. Shakeel have been convicted under Section 307 IPC and sentenced to RI for seven years. The rest of the Appellants have been convicted under Section 307/149 IPC and sentenced to RI for five years. However, no separate sentence has been passed against the Appellants in other Sections by the 5th Additional Sessions Judge, Samastipur in S.Tr. No. 369 of 1996 arising out of Tajpur (Pusa) Case No. 3 of 1996 by judgment and order dated 20.10.2001. 3. The case of the prosecution according to the Informant, Braj Kishore Choudhary, P.W. 3 is that while he was selling tickets at the cinema hall the accused persons variously armed entered the verandah of the counter-room and started abusing him. Thereafter, Md. Shakeel, Md. Jamaluddin @ Bhola and Md. Ozair Patna High Court CR. APP (SJ) No.393 of 2001 dt.12-12-2013 3 exhorted the rest of the accused to kill the informant at which the Appellant, Umesh Mahto entered into the counter-room and pulled him out from the chair and started brutally battering and belabouring him with iron rods and sticks causing injury on his head and other part of the body. The Appellant, Bhola committed theft of his personal belongings. When Vinod Kumar Chaudhary and Nand Kumar Chaudhary reached there they were also assaulted by the accused persons. They were then removed to the hospital for treatment. 4. The prosecution to prove its case examined eight witnesses. P.W. 2, Naresh Chaudhary, P.W. 4, Ajit Mahto and P.W. 6, Sanjay Kumar Mahto have not supported the case of the prosecution and have been declared hostile. 5. P.W. 1, Vinod Kumar Chaudhary, P.W. 3, Braj Kishore Chaudhary, the Informant, P.W. 5, Arbind Kumar Chaudhary, P.W. 7, Nand Kumar Chaudhary and P.W. 8, Md. Sahid are the material eye-witnesses of the occurrence. Some of whom are injured. 6. P.W. 1, Vinod Kumar Chaudhary stated that on the date of occurrence he went to the cinema hall where the informant, Braj Kishore Chaudhary was sitting he saw the accused armed with rods inflicted injuries on his head whereas the Appellant, Jamaluddin took away his money. When he tried to intercept he was Patna High Court CR. APP (SJ) No.393 of 2001 dt.12-12-2013 4 assaulted by Appellant, Bhola on his head which fractured his skull. He stated in his cross-examination that the Informant was his uncle. 7. P.W. 3, Braj Kishore Chaudhary stated that on 01.01.1996 while he was sitting at the ticket counter twelve accused persons entered into the room and started abusing him out of which he identified Jamaluddin @ Bhola, Umesh Mahto, Satish Mahto. The rest he could not name. He did not say as to who assaulted him. He further stated that the accused persons used to demand rangdari. 8. P.W. 5, Arbind Kumar Chaudhary stated that on the date of occurrence Appellant, Bhola, Shakeel, Rais and 10-12 accused persons came and started assaulting him on account of which he was seriously injured. 9. P.W. 7, Nand Kumar Chaudhary another brother of the Informant stated that on the date of occurrence Appellant, Bhola, Shakeel and Rais had assaulted him and his brother. He stated that Appellant, Bhola had instituted a case against him which had been compromised also this that he had not seen the accused persons assaulting anyone apart from him and that now the matter had been compromised. 10. P.W. 8, Md. Sahid stated that on the date of occurrence some dispute arose between the parties in Patna High Court CR. APP (SJ) No.393 of 2001 dt.12-12-2013 5 which he and others were injured. However, he does not name any accused person. 11. On going through the evidence of the witnesses, I find that the Informant has named only three accused even though he had initially named as many as eleven accused persons. Further, his brother P.W.5, Arbind Kumar Choudhary named two other persons. His other brother P.W. 7 named four persons. Thus, there is inconsistency in the version of the brothers. Also independent witness, Md. Sahid does not name any of the accused persons. 12. In view of the aforesaid, giving benefit of doubt to the Appellants, the appeals are allowed and the order of conviction and sentence passed against the Appellants on 20.10.2001 by the 5th Additional Sessions Judge, Samastipur in S.Tr. No. 369 of 1996 is set aside. The Appellants are discharged of the liability of their bail bonds. Patna High Court, Patna Dated, the 12th December, 2013 NAFR/Vikash/- (Anjana Prakash, J.)