ALLAUDDIN MIAN SHARIF MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellants in these two appeals by special leave are the six accused persons who were arraigned before the learned Third Additional Sessions Judge, Siwan, for trial. Criminal Appeal No. 343 of 1988 is by original accused Nos. 1, 2, 3 and 5 (Allauddin Mian, Keyamuddin Mian, Saheb Hussain and Afzal Mian) and Criminal Appeal No. 466 of 1988 is by original accused Nos. 4 and 6 (Sarif Mian and Mainuddin Mian). For the sake of convenience we will refer to them by their original positions in the Trial Court.

(2.) Accused Nos. 1 and 2 were charged with the commission of offences punishable under Sections 302, 452 and 148, I.P.C. The prosecution case was that accused Nos. 1 and 2 along with accused Nos. 3 to 6 constituted an unlawful assembly, the common object of which was to kill PW 6 Baharan Mian and in pursuance of the said object accused No. 1 caused the death of Sahana Khatoon aged about seven years and accused No. 2 caused the death of Chand Tara aged about seven months. Accused Nos. 1 and 2 were substantively charged under Section 302, I.P.C., whereas accused Nos. 3 to 6 were sought to be held vicariously liable under Section302/149, I.P.C. Accused Nos. 3 and 4 were further charged under Sections 447 and 148, I.P.C., and accused Nos. 5 and 6 were charged under Sections 447 and 147, I.P.C. The Trial Court convicted accused Nos. 1 and 2 on all the three counts and awarded the sentence of death to both of them for the commission of the offence punishable under Section 302, I.P.C. Each of them was also sentenced to suffer rigorous imprisonment for one year on each count under Sections 148 and 452, I.P.C. The substantive sentences were directed to run concurrently. Accused Nos. 3 and 4 were convicted under Sections 302/149, 447 and 148, IPC and for the offence under Section 302/149 each of them was directed to suffer imprisonment for life. For the offences under Sections 148 and 447, I.P.C., they were directed to suffer rigorous imprisonments for one year and three months, respectively. The substantive sentences were ordered to run concurrently. Accused Nos. 5 and 6 were convicted under Sections 302/149, 447 and 147, I.P.C. For the offence under Section 302/149, I.P.C., they were sentenced to undergo imprisonment for life whereas for the offences punishable under Sections 447 and 147, I.P.C., they were directed to suffer rigorous imprisonments for three months and six months, respectively. The substantive sentences were ordered to run concurrently. Since accused Nos. 1 and 2 were awarded the death penalty a reference was made to the High Court which came to be numbered as Reference No. 3 of 1987. Accused Nos. 1, 2, 3 and 5 preferred an appeal, Criminal Appeal No. 140 of 1987, challenging their convictions and sentences awarded to them by the Trial Court. Accused Nos. 4 and 6 preferred a separate appeal, Criminal Appeal No. 136 of 1987, against their convictions and sentences by the Trial Court. The said reference and both the appeals were disposed of by the High Court by a common judgment. The High Court dismissed the appeal insofar as accused Nos. 1 and 2 are concerned and, while accepting the reference, confirmed the sentence of death awarded to them for the murder of the two infant girls. The conviction of the remaining four accused under Section 302/149 was, however, altered to Section 326/149 and the sentence of imprisonment for life given to each of them was substituted by a sentence of rigorous imprisonment for seven years. Their convictions and sentences on the other counts were, however, maintained. Feeling aggrieved by the convictions and sentences awarded to them on different counts all the six accused persons have preferred the present two appeals by special leave.

(3.) Briefly stated the prosecution case is that on the afternoon of 25th July, 1985 around 4.30 p. m. when PW 6 Baharan Mian was sitting at the entrance of his house, the aforesaid six accused persons came from the west armed with deadly weapons; accused Nos. 1 and 2 were carrying 'farsas', accused Nos. 3 and 4 were armed with spears (bhalas) and accused Nos. 5 and 6 were armed with sticks (Lathis). On seeing them PW 6 got up and went to the 'osra' (verandah) of his house. Accused No. 3 began to untie the buffalo tethered in front of the house while the other accused persons showered abuses on PW 6, to which the latter objected. Thereupon, accused Nos. 4 and 6 shouted 'Sale ko jan se mar do'. Immediately thereafter, accused Nos. 1 and 2 moved menacingly towards PW 6. The two infants Sahana Khatoon and Chand Tara were then playing in the 'dalan' outside the western room. On seeing accused Nos. 1 and 2 approaching him duly armed with farsas PW 6 apprehended trouble and ran into the adjoining room to arm himself with a spear. His wife, PW 5 Laila Khatun, who was in the room, however, prevented him from going out for fear that he may be done to death by the accused persons. Realising that PW 6 had entered the inner room and was prevented by his wife from coming out, accused No. 1 gave farsa blows on the head, abdomen and left thumb of Sahana Khatoon causing serious injuries. Accused No. 2 gave one farsa blow on the head of infant Chand Tara. The neighbours PW 2 Ful Mohammad Mian, PW 3 Ali Asgar, PW 4 Vidya Giri and others, namely, Jalaluddin Ahmad, Sadik Mian, Ram Chandra Prasad, Bhikhari Mian, etc. intervened, pacified the assailants and sent them away. After the assailants had left the scene of occurrence the two injured girls were removed to the city dispensary where the First Information Report of PW 6 was recorded at about 6.45 p.m. Unfortunately, Sahana Khatoon died shortly after she was admitted to the dispensary. Her younger sister Chand Tara succumbed to her injuries on 23rd August, 1985. Immediately after the two injured were removed to the dispensary for treatment, PW 7 Dr. Haliwant Singh who examined Sahana Khatoon noted that she had a sharp cutting injury on the anterior half of the head causing a fracture of cranial bone with the brain substance protruding out. a sharp cutting injury on the left illiac fossa and a sharp cutting injury on the left thumb and left index finger. PW 1 Dr. Anil Kumar Verma, the Senior Assistant Surgeon in Siwan Sadar Hospital, performed the autopsy on the dead body of Sahana Khatoon on the afternoon of 26th July, 1985. Since the fact that Sahana Khatoon died a homicidal death is not in dispute, we need not set out the findings recorded by PW 1 in his post-mortem report. Suffice it to say that in the opinion of PW 1 death was due to shock and haemorrhage resulting from the injuries caused to the victim with the farsa.