QAIYUM MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Criminal Appeal No. 363 of 1990 has been preferred by Qaiyum Mian, Md. Raza and Manzoor Mian and Criminal Appeal No. 383 of 1990 by Tuzar Mian alias Md. Tuzar Mian both against the judgment and order by which all the appellants have been convicted under S. 302/34 of the Indian Penal Code (for short 'IPC and sentenced to undergo rigorous imprisonment. for life. Appellants Tuzar Mian, Qaiyum, Mian and Manzoor have also been convicted under S. 148, IPC and sentenced to undergo rigorous imprisonment for two years and so Md. Raza has been convicted under, S. 147, IPC and sentenced to undergo rigorous imprisonment for one year. All the sentences have been ordered to run concurrently. One of the accused Nurul Haque is reported to have died.

(2.) A fard beyan was given by Jalaluddin, (PW 7) on 7-5-1984 at 10 p.m. at the door of his house to Kauleshwar Mishra, A.S.I. (PW 8) to the effect that on the same date he was going to the mosque to offer prayers at the time of sun set and hulls was there in front of the palani of Azmu1 Haque of his village. When he came out after offering prayers, he found his younger brother Hadisul Haque fallen towards west of the palani of Azmul Haque. His head was towards north and he was bleeding. Towards his south, at a distance, the informant's nephew Kausar, son of Md. Hadis was also found fallen and blood was coming out from his body. His brother told him that he was assaulted by Tuzar Mian, Manzoor Mian sons of Nurul Haque Mian, Nurul Haque Mian, son of S. K. Nazir, Qaiyum Mian son of Md. Raza Mian and Raza Mian son of Hamiduddin Mian by bhala, chhura and lathi and fell him down. Tuzar had chhura, Manzoor had bhala, Qaiyum had chhura, Nurul and Raza had lathis. The informant saw towards west of Kausar that Qaiyum was running away with chhura. Tuzar had also a chhura. Manzoor with bhala and Md. Raza and Nurul with lathis, were also fleeing away towards west. The villagers rushed there and the informant asked them to apprehend the accused persons but they remained attending the injured persons and in the meantime, the accused persons ran away. The occurrence which had taken place at 6.30 p.m. was seen by Iqbal Hussain, Sirajuddin, Alamgir and the middle son of Saheb Hussain besides other villagers. The motive for the occurrence was said to be that about four days back, the she-goat of Hadis Mian had grazed the maize and kapas crops standing in the field of Nurul Haque which resulted into altercation between his brother and the said persons and when his brother and nephew went to enquire about that, the occurrence took place. On the alarm, several villagers gathered of the spot. His brother and nephew were taken to the hospital on the cots and in course of which, his nephew was saying about the aforesaid five persons who had assaulted them. The injured were taken to the road of Sarsar which passes through Siwan to Mirganj and the persons present there were in search of a vehicle so as to take the injured persons to the hospital but in the meanwhile both the injured died. After that, both the dead bodies were taken back to the village from where some one sent the village Choukidar to give information at the police station. On the basis of this fard beyan, First Information Report (Ext. 1) was registered, being Siwan Mufassil P. S. Case No. 68/84. The investigation of the case was taken up by A.S.I. Kauleshwar Mishra, P.W. 8. The dead bodies were sent for post mortem examination. It appears that on an application given by the informant against the Investigating Officer, the investigation of the said case was given over to the second Investigating Officer, Gabrial Anthony, P.W. 9. This Investigating Officer, after taking charge of investigation, again went to the place of occurrence, prepared sketch map and took steps for constitution of a Medical Board on the application of the informant to get the injured examined again and after completion of the investigation, submitted the charge sheet against the above named appellants.

(3.) The accused, in their defence, denied the prosecution case, alleging that such occurrence never took place, rather the prosecution party were aggressors and they had attacked on deceased Nurul Haque, Tuzar and other members of their family for which Siwan Mufassil P.S. Case No. 69/84 was instituted. In the fard beyan of the said case, it has been said that between the children of accused informant Manzoorul Haque son of Nurul Haque and the Nati (grand-son) of Jalaluddin, there was a quarrel on 7-5-84 at 1 1.30 a.m. and then on the same day at 5 p.m. Hadis Mian, Jalaluddin (informant), Israil, son of Jalaluddin Kamrul son of Hadis came to their bathan and began to abuse very much but he kept quiet and in the meantime, the villagers intervened. After that, all the four accused persons came again at the bathan. Jalaluddin and Hadis had lathis, Israil and Kausar had chhura and on coming they began to abuse, upon which his father Nurul protested. Hadis Mian and Jalaluddin assaulted him by fists whereupon he fell down and seeing this, he (Manzoorul Haque) said to his brother Tuzar to save the father. Then all the four persons attacked him and Hadis. Kausar assaulted him by fist of the left chest and near the eye. They gave four fists to him upon which he and others fell down upon Laheri and by then, his brother Tuzar ran away. Israil gave blow on the left side of abdomen. Kausar gave a chhura blow on the left shoulder. Others assaulted him by lathis. Seeing this, to save the lives, he and other rushed to the door of Jagdish Choudary and Rambali who asked them to go away, otherwise they also will be invovled in this quarrel, so, he and others ran to the door of Kaidahri Singh and in the way, he met his brother Tuzar in injured condition and then both the brothers went to the Siwan Hospital. This occurrence was seen by Md. Raza, Qaiyum, Sk. Rasool, Sk. Mukhtar and Raja Choudhary. On the basis of this fard beyan, counter FIR was registered. Nurul Haque is reported to have died. It is said that charge sheet has been submitted in this case also. The defence in support of its case, brought on record the copy of the fard beyan and charge sheet as Exts. C and B, but did not examine any of the witnesses mentioned, in the fard beyan given by Manzoorul Haque son of Nurul Haque. They, however examined three other defence witnesses, namely. Sharfuddin (D.W. 1) a tayeed who has said about the doctor (Subhash Chandra Rai, D.W. 2) examining the injured persons and submitting injury reports under his signatures marked Exts. A, A/b and A/c. He claimed to know also the hand-writing of Dr. Masleuddin, who was posted in the Sadar Hospital on 13-5-1984. D.W. 2, Dr. Subhash Chandra Rai has said that the had examined Tuzar Mian and found the injuries, like, penetrating wound 1" x cavity deep over left upper abdomen lateral surface just below the coastal margin, incised wound 1" x 4" muscles deep over left arm of posterior surface, 2" above left elbow joint, pain and tenderness right lower back. In his opinion, for injury No. 1, he said that it was reserved for surgical opinion and after completion of which, such injury was found to be grievous in nature. He has said that injury Nos. 2, 3 and 4 were simple in nature. His injury report is Ext. A. He also examined Nurul Haque and found injury on his person like, incised wound 2" x 1/4 " x 1/4 " over thigh lateral surface and the same was simple in nature. His injury report about this injured is Ext. A/b. The third defence witness is Haresh Rai, a clerk of Shri Babu advocate who has said that Dr. M. Ahmad was posted at Sadar Hospital with whose writing he is acquainted,