MUSTAQUE ALI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants suffered conviction under sections 323/34 and 341 of the Indian Penal Code (IPC) and while they were sentenced to suffer rigorous imprisonment for a term of one year on the first count, no sentence was recorded on the second count. Mustaque Ali suffered conviction under section 325 IPC and was sentenced to suffer rigorous imprisonment for a term of three years and Manzoor Ali suffered conviction under section 323 IPC and was sentenced to suffer rigorous imprisonment for a term of one year. However, sentences were directed to run concurrently.

(2.) THE factual matrix. ''While Subhash Mehta (P.W. 7) was counting bamboos, allegedly sold to Sajjanlal Yadav, he noticed shortage of 15 number of bamboos and, on inquiry, he found one number of bamboo at the house of Nazir Ali and two number of bamboos in the paddy field of Liyakat Ali and he allegedly restored to them to his store, pursuant to which it is alleged that the appellants came to him and took him to task for removal of bamboos from their custody and it is alleged that on exhortation made by Mazid Ali, Nazir fell him on the bamboos and pressed his neck. It was alleged that Manzoor Ali dealt blows with hard and blunt substance on his buttock and for Mustaque Ali, it was alleged that he twisted his thumb and pulled his hands towards back side and with these accusations, prosecution was launched against the appellants on behest of Subhash Mehta, pursuat to which investigation commenced. In course of investigation, the Police recorded statement of witnesses under section 161 of the Code of Criminal Procedure, visisted the place of occurrence, got the injured clinically examined by the doctor and, on conclusion of investigation, laid chargesheet before the Court. In the eventual trial, that commenced, the State examined altogether 10 witnesses including the injured and host of witnesses including some formal witnesses and also the doctor who stated to have examined the injuries on the person of Subhash Mehta.

(3.) PROPRIETY of the findings, recorded by the court below, was sought to be assailed by the learned counsel for the appellants and it is urged that though the doctor, who examined Subhash Mehta, found dislocation in the thumb and came to the conclusion about the injuries to be grievous in nature, it was quite unnatural that without there being examination of the injury by deep x -ray, the doctor would rush to such a conclusion. Contentions are raised that though the theft of bamboos from the stock of Subhash Mehta was shown to be the genesis of the incident, no cogent and clinching evidence was ever brought on the record by the State on this score and hence, it is urged that the entire prosecution case has to be thrown over board. The manner of occurrence to be at variance in the testimony of the witnesses was also taken to be a ground to assail the credibility of the witnesses and the last argument canvassed on behalf of the appellants was that though the prosecution was launched in the year 1983, the appellants have suffered the ordeal of protracted trial for about 19 years and with the aid of the statement of the appellants recorded by the court below under section 313 of the Code of Criminal Procedure, it is urged that Mazid Ali and Nazir Ali were aged about 65 and 55 years respectively, in the year 1991 when they were examined by the Court and by that time there must be addition of ten years in their age and on these premises, it is urged that ends of justice would be met, if these mitigating circumstances were taken into consideration while imposing sentence on them, if the appellants are found guilty of charges. The contention raised at Bar were resisted by the learned counsel for the State.