Subarak Mian And Anr. Vs State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (DB) No.210 of 2011

(Against the Judgment of conviction and order of sentence both dated 11.02.2011, passed by learned Addl. Sessions Judge, Fast Track Court-V, Godda, in S.C. No.32 of 2009/ T.R. No.162 of 2010 (arising out of Poraiyahat P.S. Case No.139 of 2008).

¶4

1.Subarak Mian, S/o Late Elahi Mian 2.Jakir Mian, S/o Surfatwa Mian

¶5

Both residents of Village- Pokharia, P.O. & P.S. Poraiyahat, District- Godda.

¶6

…. Appellants

¶7

Versus

¶8

The State of Jharkhand. ….. Respondent

¶9

P R E S E N T

¶10

HON’BLE MR. JUSTICE ANANDA SEN

¶11

HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

¶12

….. For the Appellants : Mrs. Jasvinder Mazumdar, Advocate Mr. Rohan Mazumdar, Advocate For the State : Mr. Azeemuddin, APP

¶13

By Court:- Heard learned counsel for the appellants and learned counsel for the State.

¶14

1. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence both dated 11.02.2011, passed by learned Addl. Sessions Judge, Fast Track Court-V, Godda, in S.C. No.32 of 2009/ T.R. No.162 of 2010 (arising out of Poraiyahat P.S. Case No.139 of 2008, whereby both the appellants have been convicted under Sections 302 and 323 IPC and sentenced to undergo RI for life and to pay fine of Rs.3,000/- each and in default, to further undergo RI for one year. Further, they have been sentenced to undergo RI for six months under Section 323 IPC.

¶15

2. The case of prosecution, in short, is that on 06.08.2008, Ajmery Khatoon, the daughter of Subarak Mian (accused) was cutting grass in the garden of the informant. The informant and his wife Bukka Bibi protested, then she abused them and went to her house and told her father about the incidence. It is alleged that on 07.08.2008 at 7 P.M., Subarak Mian (appellant no.1) armed with a wooden piece, Jakir Mian (appellant no.2) armed with a stick, Jamila Bibi, Ajmery Khatoon and Sojani Bibi came to the house of the informant and started assaulting the son of the informant, namely, Md. Sadikur Mian on his head. Sadikur Mian (deceased) sustained injury fell on the ground. It is further stated that the accused, Jakir Mian also assaulted the informant when he rushed to rescue his son. Informant’s son died during the course of his treatment.

¶16

1

¶17

3. On the basis of fardbeyan of the informant, FIR being Poraiyahat P.S. Case No.139 of 2008 was registered under Sections 341, 323, 447, 307/34 IPC against the named accused persons.

¶18

4. Police on investigation submitted charge-sheet under Sections 341/ 323/ 447/ 307/ 302/ 34 IPC against the accused persons and cognizance was taken as well as charge was framed and the accused persons were put on trial.

¶19

5. In order to prove the case, the prosecution has examined altogether 15 witnesses and several documents have been adduced and marked as Exhibits.

¶20

6. Learned counsel for the appellants submits that both the appellants have wrongly been convicted under Section 302 IPC. It is submitted that there was no intention to commit murder of the deceased which will be apparent from the post-mortem report. As per the post-mortem report, only two injuries were found on the body, one was in the nature of abrasion, which is simple in nature and another was grievous. It is further submitted that there was some dispute with respect to cutting of grass which led to sudden altercation between both the parties, as such, by no stretch of imagination, this case will come within the purview of Section 302 IPC.

¶21

7. It is further argued that so far accused/ appellant no.2 (Jakir Mian) is concerned, there is no overt act attributed to him and there is nothing on record to suggest that he shared the common intention to cause death. Therefore, Section 34 IPC will not be attracted in this case.

¶22

8. Learned APP for the State has defended the impugned Judgment of conviction and sentence. P.W.1 and P.W.2 being eye-witnesses have stated that appellant no.1 (Subarak Mian) had assaulted the deceased on his head with the leg of cot, as a result, he sustained injury over his skull causing fracture of parietal bone and temporal bone. Cause of death was due to haemorrhage and shock resulting of the injury of brain tissues. It is argued that the assault clearly suggests that appellants had intention to commit murder of the deceased that too when the assault is on the vital part of the body i.e. on head.

¶23

9. Considering the submissions of the parties and evidence on record, it is evident that P.W. nos. 1 and 2 have stated that these two appellants came to the house of the deceased and they assaulted the deceased. Subarak Mian (appellant no.1) assaulted with the leg of the cot and the Jakir Mian (appellant no.2) assaulted with the log of wood. Genesis of the offence has also been stated by the witnesses. It is stated that the daughter of appellant no. 1 was

¶24

2

¶25

cutting grass and while doing so, they also chopped the Gamahar plant of the informant.

¶26

10. On the next day, dispute arose when these two appellants came to the house of the informant and assaulted the deceased Sadikur Mian. Their evidence is consistent as both stated that the assault was on the head. They are natural witness(es) to the incidence as it took place in the house of the informant. P.W.4 (informant) is also an eye-witness and is the father of the deceased. He stated that these two appellants came to his house and assaulted the deceased. He categorically stated that Subarak (appellant no.1) assaulted the deceased with the leg of the cot, as a result of which, he sustained injury. He further stated that as a result of the said assault, his son died.

¶27

11. P.W.8 is the Doctor who examined Ibrahim Mian and Sadikur Mian. Sadikur Mian is the deceased and Ibrahim Mian is the informant. Testimony of the informant is corroborated by medical evidence. The Doctor, on examining Ibrahim Mian, found abrasion on his right fore-arm and on the left supra clavicular region. The nature of injury(s) was simple.

¶28

12. So far as the injury on deceased Sadikur Mian is concerned, he found big swelling mark on the right temporal region of the scalp, he was referred to the higher centre. P.W. 14 is the Doctor, who conducted the Post Mortem on the dead body of the Sadikur Mian. He found the following injuries on the person of the deceased.

¶29

(i) 1 abrasion ½” x ¼” on the tip of nose another abrasion ¼” x ¼” on forehead. (ii) One bruise 2” x 2” in front of tragus of right ear and one bruise 2”x ½” behind right ear.

¶30

On dissection of skull and scalp tissues, the scalp tissue was found deeply bruised.

¶31

He also found the right parietal bone and temporal bone was fractured and subdural haematoma on right temporal parietal area of the cerebral cortex.

¶32

He opined that injury no. 2 was grievous, though injury no. 1 was simple. Both injuries were caused by hard and blunt substance. The cause of death is due to haemorrhage and shock and injuries to brain tissues. In cross-examination, nothing was extracted.

¶33

13. From the evidence of these witnesses, we find that there is consistent evidence that Subarak Mian (appellant no.1) assaulted the deceased on his head, as a result of which, he sustained severe injury(s) and later on he died. The temporal bone was fractured because of the said injuries.

¶34

3

¶35

14. So far as Jakir Mian (appellant no.2) is concerned, in the F.I.R. informant states that he was assaulted with a log of wood though in his evidence, he has omitted to say anything about the assault by Jakir upon him, but the fact that he was treated by the Doctor is not denied. Doctor also found injury(s) on the informant. So far as P.W. 1 and P.W.2 are concerned, they both have categorically stated about the involvement of Subarak Mian assaulting the deceased. They have also stated that deceased was also assaulted on his head near the region of right ear which is corroborated by the medical evidence of P.W. 14 and P.W. 8, who also found injuries on the right part of head that is on the region of the ear.

¶36

15. Thus, from the evidence, we come to the conclusion that the prosecution has been able to prove that Subarak had assaulted the deceased and Jakir has also assaulted the informant and the deceased, though the injury inflicted by the Jakir was simple.

¶37

16. So far as genesis of the case is concerned, we find that on 06.08.2008, the daughter of Subarak Mian was cutting grass and wife of the informant forbade her but she did not pay any heed. While cutting grass, she also chopped the Gamhar plant of the informant. The girl when she was forbidden from cutting grass, abused the informant’s wife and left. On the next day i.e., on 07.08.2008 these appellants came armed with log of wood and leg of the cot and they started assaulting the son of the informant. This fact has been proved by the evidence on record. Thus, from the evidence, we find that it is these appellants who came to the house of the informant and had committed the offence.

¶38

17. Incidence was preceded by a verbal altercation that took place a day before the incidence on 06.08.2008, when the daughter of appellant no.1 (Subarak Mian) was cutting the grass in the bari (garden) of the informant. There was no history of past enmity and the incidence took place on the heat of moment over a trivial issue of cutting of grass without any pre-meditation.

¶39

18. So far as the case of appellant no.1 (Subarak Mian) is concerned, the same will fall within Exception (4) to Section 300 IPC which is punishable under Section 304 IPC. Considering the overt act of appellant no.1 (Subarak Mian) is concerned, we are of the opinion that his conviction under Section 302 IPC is bad and his conviction is altered to that of under Section 304 Part II IPC.

¶40

4

¶41

19. Section 34 of the IPC will not apply to hold appellant no.2 vicariously liable for the culpable homicide committed by appellant no.1, for the reason that there is no evidence that there was a pre-concerted plan or that he shared the common intention with him. Therefore, his conviction under section 302/34 is not sustainable and is accordingly set aside.

¶42

20. Considering the evidence of P.Ws.1, 2 and 4 and medical evidence, from where it is evident that he had assaulted the informant with the piece of log and also the deceased, but the nature of injury inflicted on them was simple. Even P.W.4 has not stated that appellant no.2 (Jakir Mian) had assaulted them, but the fact remains that there is evidence to suggest that he had assaulted the deceased. Accordingly we are of the opinion that appellant no.2 be convicted under Section 323 IPC.

¶43

21. So far as sentence is concerned, we have held that appellant no.1 (Subarak Mian) is held guilty for the offence under Section 304 Part II IPC and he is accordingly sentenced to undergo rigorous imprisonment for five years, with fine of Rs.3,000/-. In default of payment of fine, he shall further undergo SI for one month.

¶44

22. So far appellant no.2 (Jakir Mian) is concerned, he is convicted and sentenced for a period of one year with fine of Rs.3,000/- under Section 323 of the IPC.

¶45

23. Since the appellant no.2 has remained in custody for more than two years, and is on bail, accordingly, he and his sureties are discharged from the liabilities of their bail bonds.

¶46

24. So far appellant no.1 is concerned, he is on bail, as such, his bail is cancelled. Appellant no.1 is directed to surrender before the learned Trial Court forthwith so as to serve remaining part of his sentence. If he does not surrender within 30 days, the learned Trial Court will proceed as per law.

¶47