MOHAMMAD MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) WHILE Mohammad Mian and Yunus Mian were prosecuted for the charges under section 307 of the Indian Penal Code (IPC), Manir Mian and Md. Islam Mian were prosecuted for charges under section 307/34, IPC on accusation that, as the appellants were noticed spading the land of Allauddin on which a tree had been planted by the latter a year earlier, a protest was registered by Lali Mian and Allauddin for which punches too mediated. It was alleged that the plot was measured by the punches and ridges were fixed between the two plots by the parties, pursuant to which Mohammad Mian and Yunus Mian assaulted Allauddin with garassa, a sharp edged weapon, and when Lali Mian came for rescue, he too suffered injuries on his hands. After the police was set in motion on behest of Mosst. Hadisan (P.W. 9), who happens to be daughter of Lali Mian, the Police Officer recorded statement of witnesses under section 161 of the Code of Criminal Procedure, visited the place of occurrence, got the two injured clinically examined by the doctor, and on conclusion of investigation laid charge sheet before the Court and after eventual committal to the Court of Session, the appellants were put on trial. In the eventual trial, that commenced, the prosecution examined as many as 13 number of witnesses which include Mohammad Adid(P.\N. 1), Lali Mian (P.W. 7), the punches, other members of the family of the injured, the Police Officer and some formal witnesses, and the trial court on evaluation of the probative value of the testimony of the witnesses. While exonerated the appellants of the charges under section 307 IPC, and 307/34 IPC. found Yunus Mian guilty under section 324 IPC and sentenced him to suffer rigorous imprisonment for a term of three years. The trial court also found Mohammad Mian guilty under section 323 IPC and sentenced him to suffer rigorous imprisonment for a term of one year. The rest two appellants were found guilty under section 323/34 IPC and were sentenced to suffer rigorous imprisonment for a term of four years.

(2.) VOLUME of arguments were canvassed on behalf of the appellants to assail the propriety of the findings recorded by the trial court, and it is sought to be urged that if the tenor of the first information report of which Mosst. Hadisan happens to be the author was to be given any credence, both Mohammad Mian and Yunus Mian at first instance assaulted Allauddin with garasa, pursuant to which Lali Mian was shown to have suffered injuries by them when he rushed to the place of the occurrence.Contentions are raised that if this sequence of events emerging from the first information report, which happens to be the sheet anchor of the prosecution case, was considered to be the genesis of the incident, narration made by the witnesses who claimed to be the ocular witnesses were quite otherwise, as they had been stating before the Court that pursuant to the altercation between the parties with regard to fixation of the ridges between the two plots, it was Mohammad Mian who at first instance, assaulted Lali with handle of spade which was allegedly followed by assault by Yunus Mian on Allauddin with garasa. The Second limb of argument canvassed on behalf of the appellants was that only partisan and interested witnesses were examined at trial by the State entirely to the exclusion of the independent witnesses who could have been competent to lend assurance to the prosecution allegations. Next, it is urged that the prosecution was also guilty of introducing distorted version about the place of occurrence, as witnesses were making divergent statements before the Court with regard to the field in which Allauddin and Lali dropped, pursuant to receipt of injuries on their persons and the last argument canvassed on behalf of the appellants was that the prosecution was launched against the appellants in the year 1983 and since the appellants had suffered the ordeal of protracted trial for about 19 years, the ends of justice will be met, if instead of sending them to prison, they are sentenced to fine. Learned counsel for the State resisted contentions raised on behalf of the appellants.

(3.) IT is not in dispute that even though the doctor was not examined, the injury report of which the doctor was said to be the author, was sought to be placed on the record with the aid of formal witness and notwithstanding non -examination of the doctor, the trial court rendered verdict of guilt against Yunus Mian under section 324 IPC for which he was sentenced to suffer rigorous imprisonment for a term of three years. Since the doctor was not examined, who was the best authority to say about the nature of injuries suffered by the injured at the hands of Yunus Mian, conviction of Yunus Mian can well be converted into one under section 323 IPC. While evaluating the probative value of the testimony of the witnesses, this fact cannot be lost sight of that Manir Mian and Md. Islam Mian were suggested to be silent spectator of the incident. Though some witnesses were stating that they were holding arrows in their hands, no overt act was ever attributed to them about they having ever used the weapon held by them. On this score, these two appellants could not have been convicted with the aid of Section 34 IPC. Both the appellants Manir Mian and Islam Mian, as such are acquitted of the charges levelled against them. The prosecution was launched against the appellants in the year 1983 and rightly since then much water has flown in the river Ganges. The prosecution party and the appellants are none else but come from a common stock and the dispute between them was with regard to the land which usually happens in the families which come from rural areas. It is brought to my notice that appellant no. 1 Mohammad Mian has remained in custody as undertrial prisoner for about two months and about appellant no. 2, this is shown that he has been in custody for about three months and in view of the protracted trial of the appellants for about 19 years, while conviction of Yunus Mian, as stated above, is converted under section 323 IPC, both the appellants are found guilty under section 323 IPC and are sentenced to the period already undergone by them. In addition, they are sentenced to pay a fine of Rs. 800/ - (eight hundred) each, in default of which they would undergo rigorous imprisonment for two months, with the modifications in the order of conviction and sentence to the extent indicated above, this appeal is allowed in part. Those acquitted are discharged from the liability of the bail bonds. The amount of fine is to be deposited in Court within two months of the receipt of a copy of this judgment.