1. Irshad Hussain @ Irshad son of Late Laldin Hussain 2. Md. Akhtar Hussain v. The State of Bihar
Case Details
Criminal Appeal (D.B.) No. 29 of 1997 (R) Against the judgment and order of conviction dated 20.01.1997 (sentence passed on 21.01.1997) passed by Sri G. K. Varma, IInd Additional Sessions Judge, Jamshedpur in S. T. No. 18 of 1992. --- 1. Irshad Hussain @ Irshad son of Late Laldin Hussain 2. Md. Akhtar Hussain son of Mokhtar Hussain both residents of Itadih, PS Parsudih, District Singhbhum (East) … … Appellants Versus The State of Bihar (now Jharkhand) … … Respondent --- For the Appellant For the Respondent : Mr. Rohan Mazumdar, Advocate : Mr. Subodh Kumar Dubey, A.P.P. --- Present: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE ARUN KUMAR RAI --- Per, R. Mukhopadhyay, J.
Legal Reasoning
Heard Mr. Rohan Mazumdar, learned counsel for the appellant and Mr. Subodh Kumar Dubey, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction dated 20.01.1997 (sentence passed on 21.01.1997) passed by Sri G. K. Varma, IInd Additional Sessions Judge, Jamshedpur in S. T. No. 18 of 1992 whereby and whereunder the appellants have been convicted for the offence under Section 302/34 of I.P.C. The appellant no. 1 has additionally been convicted for the offence under Section 35 of the Arms Act while the appellant no. 2 has also been additionally convicted for the offence under Section 27 of Arms Act and both the appellants have been sentenced to undergo rigorous imprisonment for life for the offence under Sections 302/34 of I.P.C., the appellant no. 1 has been sentenced to undergo rigorous imprisonment for 3 years under Section 35 of the Arms Act and the appellant no. 2 has been sentenced to undergo rigorous imprisonment for 5 years under Section 27 of the Arms Act. 3. The appellant no. 2 has died during the pendency of this appeal and hence this appeal has abated so far as the appellant no. 2 is concerned. 4. The prosecution case arises out of a fard beyan of Chaina Deogam recorded on 25.04.1991 in which it has been alleged that at 8:30 P.M., the informant was conversing with Bakai Ho who is the uncle in relation to the informant and in the meantime, the brother of the informant namely Loke Deogam had come to Kitadih village with Akhtar and Irshad Hussain and when they reached, there was an altercation between the informant’s brother Loke and Akhtar. It has been alleged that Akhtar with a pistol in his hand was threatening the brother of the informant and on instigation of Irshad, Akhtar had fired upon the brother of the informant. The bullet fired by Akhtar pierced the skull of the brother of the informant and also struck Sheo Nath Munda who was coming from somewhere below his ear. The brother of the informant fell down on the ground and died. Sheo Nath Munda fled towards his house. When the villagers assembled, the accused persons had fled away. Based on the aforesaid allegations, Parsudih P. S. Case No. 53 of 1991 was instituted. On completion of investigation, charge-sheet was submitted against the accused and after cognizance was taken, the case was committed to the court of Sessions, where it was registered as S. T. No. 18 of 1992. Charge was framed against the accused persons under Sections 302/34 of I.P.C. and Irshad Hussain (appellant) has separately been charged under Section 302/109 of I.P.C. and both the accused have been additionally charged under Sections 35 and 27 of Arms Act respectively, which were read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as 6 witnesses in support of its case. 6. P.W. 1 – Dr. Sudhir Kumar has examined Sheo Nath Munda on 25.04.1991 and had found the following: “Lacerated Injury – ½” diameter with closed margin near the right angle of the mandible. X-ray shows bullet at the length of 2 4, 5, 6th of survical vertebrae in front (as this contains written in the B.H.T. by the unit I/c Dr. R. K. Singh). Injury is caused by fire arm substance and simple in nature. Age of injury within 24 hours. Mark of identification – injury itselt.” The injuries were opined to be simple in nature. He has proved the injury report which has been marked as Exhibit 1. 7. P.W. 2 – Chaina Deogam is the informant who has stated that on 25.04.1991 at 8:30 P.M. he was talking with Bakai in the house of Bakai when he heard some commotion and when he went to the said place, he had seen his brother quarrelling with accused persons. Akhtar was brandishing a pistol and was threatening to fire at his brother. When Irshad ordered, Akhtar shot at his brother which struck near the left eye and the bullet pierced through him and struck Sheo Nath Munda and he also became injured. Akhtar and Irshad thereafter fled away. He had identified both the accused from the electric bulb which was burning at the place of occurrence. In cross-examination, he has deposed that on hearing the alarm, 3- 4 persons had assembled and Konda was one of them. The cross-examination was deferred on the prayer of the defence and after the prosecution case was closed, an application was filed by the defence for recall of this witness for further cross-examination which was rejected. Subsequently on another application being filed, the same was allowed by the learned trial court by imposing a cost of Rs. 300/- to be deposited by the defence which was complied with, but in spite of summons and warrant of arrest, he did not appear for his cross- examination and it was reported by the police that he was not available in the village. 8. P.W. 3 – Dr. Tulsi Mahto was posted at MGM College and Hospital, Jamshedpur and on 26.04.1991, he had conducted autopsy on the dead body of Loke Deogam and had found the following: “External – Fire arm wound with wound of anterior over the front of central portion of fractured. There is tattooing and the browed an area 6 cm x 10 cm. The projectile has broken the frontal bone and nasal bone into multiple pieces. Some of the fractured bone are missing near the coronal sector with avulsion of frontal scalp. The right eye ball has been protruded to fractured and of root of orbital cavity. Interior half of scalp is avulsed. The 3 projectile has come out through the opening over the posterior part of interior scalp of frontal bone. The frontal lob of both side of brain is lacerated. Internally – Rest internal organ are normal and pale. The stomach contained food material with pasty form, urinary bladder is empty. Wound has exit part also.” It was opined that the death occurred as a result of fire arm injuries. He has proved the post mortem report which has been marked as Exhibit 2. 9. P.W. 4 – Bakai Ho has stated that he was sitting at home at around 8:30 P.M. talking with his nephew Chaitu, when he saw Loke, Akhtar and Irshad coming. Akhtar and Irshad were abusing Loke. On the instigation of Irshad, Akhtar shot at Loke at which Loke fell on the ground and died. One Munda had also suffered injury. In cross-examination, he has deposed that 10-15 persons had already assembled at the place of occurrence prior to his arrival and those persons were saying that Loke has died. When he reached the place of occurrence, Loke Deogam was already dead. He has claimed that he had seen the occurrence. When he had reached the place of occurrence Sheo Nath Munda had already left for his home. 10. P.W. 5 – Sheo Nath Munda did not support the case of the prosecution and was declared hostile by the prosecution. 11. P.W. 6 – Md. Shakeel Azam was posted as Officer Incharge in Parsudih Police Station and on 25.04.1991 at 8:45 P.M., he had received information that there has been a firing at village Kitadih and one person had died. On such information, he had reached the place of occurrence where he saw the dead body and several persons had already assembled at the said place. He had recorded the fard beyan of Chaina Deogam which has been proved and marked as Exhibit 3. He has proved the formal FIR which was marked as Exhibit 4. He had taken over the investigation and had recorded the reinstatement of the informant. He had inspected the place of occurrence which is in a village road in village Kitadih. He had recorded the statement of the witnesses and had sent Sheo Nath Munda to MGM Hospital for his treatment. He has deposed that when he reached the place of occurrence, he found several persons 4 present there. He had not found any spent cartridge at the place of occurrence. According to his information, there was no enmity between the accused and the deceased. 12. The statements of the accused persons were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the murder and claimed to be tried. 13. Mr. Rohan Mazumdar, learned counsel for the appellant has submitted that the prosecution has cited P.W. 2, P.W. 4 and P.W. 5 as eye-witnesses, but P.W. 5 has been declared hostile by the prosecution while P.W. 4 had reached the place of occurrence after the incident had already taken place. So far as the P.W. 2 is concerned, he did not turn up for cross-examination and therefore, his statement cannot be read in evidence. Mr. Mazumdar, learned counsel has further submitted that in spite of the fact that several persons had assembled at the place of occurrence, but none have been examined by the prosecution and therefore this is a case of no evidence. 14. Mr. Subodh Kumar Dubey, learned A.P.P. has submitted that as per the evidence of the prosecution, it was the appellant who had goaded and instigated Akhtar to fire at the deceased and such evidence has been corroborated by the post mortem report. 15. We have heard the learned counsel for the respective parties and have also perused the trial court records. 16. The fard beyan of the informant (P.W. 2) reveals about an altercation between the brother of the informant and the accused persons and the threat of firing at the brother of the informant given by Akhtar turned into a reality on account of Akhtar firing at him on being incited by the appellant – Irshad. The bullet went through the skull of the deceased and struck Sheo Nath Munda who was coming from somewhere. Sheo Nath Munda did not support the case of the prosecution and was declared hostile by the prosecution. P.W. 4 who is the uncle of the informant has claimed to have seen the occurrence, but his cross-examination speaks otherwise. By the time he had arrived at the place of occurrence, 10-15 persons had already assembled and Loke Deogam was already dead by then. A feeble attempt was made by P.W. 5 4 to elevate his status to that of an eye-witness, but his late arrival at the place of occurrence when Loke Deogam was already dead completely demolishes his testimony. The informant has been examined as P.W. 2, but his cross-examination could not be completed on account of the failure on the part of the prosecution to produce him before the court to undergo his test of cross-examination. Though, P.W. 2 claims himself to be an eye-witness, his evidence has to be discarded on account of the inherent flaw in his evidence of being not subjected to cross-examination for the reasons best known to the prosecution. The entire case of the prosecution is banked upon the evidences of P.W. 2, P.W. 4 and P.W. 5 and since on dissection of their evidences, we have come to a finding that their eye-witness account cannot be relied upon for the purposes of conviction, the impugned judgment and order of conviction dated 20.01.1997 (sentence passed on 21.01.1997) passed by Sri G. K. Varma, IInd Additional Sessions Judge, Jamshedpur in S. T. No. 18 of 1992 is hereby set aside. 17. 18. This appeal is allowed. Since the appellant – Irshad Hussain @ Irshad is on bail, he is discharged from the liabilities of his bail bond. 19. Pending I.A., if any stands closed. (Rongon Mukhopadhyay, J.) (Arun Kumar Rai, J.) Jharkhand High Court at Ranchi The 27th day of November,2024 R.Shekhar/NAFR/Cp.3 6