Allowed

Moin Raza v. State of Bihar

Patna HC18 Apr 2013CR. APP (SJ)/285/2001

Case brief

AI extract

What is this about?

The Patna High Court allowed a criminal appeal against a conviction under IPC 326 and 307. The High Court set aside the trial court's order, finding that the prosecution witness concealed a prior case lodged by the appellant and failed to explain the appellant's injuries, entitling the appellant to the benefit of doubt.

What did the court decide?

The appeal was allowed; the impugned judgment of conviction and sentence order was set aside; the appellant is discharged from bail liabilities.

Moin Raza Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2013)

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Patna High Court CR. APP (SJ) No.285 of 2001 dt.18-04-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.285 of 2001

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========================================================= (Against the judgment of conviction and order of sentence dated 19-072001 passed by learned IVth Additional Sessions Judge, Samastipur in Sessions Trial No. 39 of 1989)

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Moin Raza, S/o Hakim Md. Yusuf, Resident of Village-Rajwa, P.S. Bangra, District-Samastipur.

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.... .... Appellant . Versus

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The State Of Bihar

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.... .... Respondent/s

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========================================================= Appearance : For the Appellant/s : Mr. Jitendra Narayan Sinha, Advocate. Mr. Rohit Kumar, Advocate. For the Respondent/s : Mr. Sujit Kumar Singh, A.P.P. Dated/ the 18^th day of April, 2013. ========================================================= CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA

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JUDGMENT

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Hemant Kumar 1. Heard learned counsel for the appellant as well as learned Srivastava,J. Additional Public Prosecutor for the State and perused the record.

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The above-said appellant has been convicted under Section-326 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for three years under the above-said section by learned IVth Additional Sessions Judge, Samastipur vide his judgment of conviction and order of sentence dated 19-07-2001 passed in Sessions Trial No. 39 of 1989.

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In brief, the prosecution case, is that P.W. 3 namely, Sri

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Patna High Court CR. APP (SJ) No.285 of 2001 dt.18-04-2013

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Chandrashekhar Jha gave his fardbeyan to Officer-in-charge of Samastipur Police Station on 04-09-1987 at about 10.00 p.m. in injured condition at Sri Ram Hotel, to this effect that on the same day, at about 9.45 p.m., he was standing near a betel shop of one, Jwala Singh at Ram Babu Chowk and in the meantime, the appellant, and one Mahtabuddin came there and demanded wine from him. He informed them that his shop was closed on account of Moharram but the aforesaid persons started abusing him and they were adamant to break the seal of wine shop. He forbade them to do so, but accused, Mahtabuddin caught his collar whereas; the appellant took out a dagger from his pocket and gave dagger blow to him, as a result of which, he sustained injury on several parts of his body. He caught hold of Mahtabuddin and brought him to Sri Ram Hotel whereas; the appellant managed to flee from there. Several persons including Jogi Sahani, Ram Prasad Rai, Bengali Sah, Vishwanath Mahto, Jwala Singh and others witnessed the occurrence and informed the police. The police came there and brought him hospital, where his treatment was done and the police took Mahtabuddin to police station.

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On the basis of aforesaid fardbeyan, Town P.S. Case No. 355 of 1987 under Sections-341, 323, 504, 386 of the Indian Penal code was registered against the appellant and Mahtabuddin and formal FIR was drawn up for the offences under Sections-341, 324 & 307 of the Indian Penal Code against the appellant and above-said Mahtabuddin.

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The police started investigation and after completion of investigation, submitted charge sheet under Sections-341, 326, 307/ 504, of the Indian Penal Code against the appellant and co-accused, Mahtabuddin. Cognizance of the offence was taken and the case was

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Patna High Court CR. APP (SJ) No.285 of 2001 dt.18-04-2013

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committed to the court of sessions, in usual way.

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The appellant and co-accused, Mahtabuddin were put on trial and the appellant was charged for the offence punishable under Section-307 read with Section-34 of the Indian Penal Code.

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In course of trial, altogether, 5 prosecution witnesses were examined and besides it, the prosecution proved fardbeyan as Ext-1, signature of P.W. 3 on fardbeyan as Ext-2, injury report of P.W. 3 as Ext.3 and certified copy of judgment dated 13-08-1996 passed in G.R. No. 931 of 1987/Trial No. 96 of 1996 as Ext. 4.

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The statement of appellant was recorded under Section-313 of the Cr. P.C. in which, he denied the prosecution story and specifically, stated that a quarrel had taken place between him and the P.W. 3 and in the aforesaid quarrel, P.W. 3 fell on a broken BOIYAM (container), as a result of which, he sustained injury. The appellant also stated that he, too, sustained injury in the aforesaid quarrel.

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The appellant also got examined three defence witnesses as well as got exhibited entry in hospital register as Ext.-A, the certified copy of FIR of Town P.S. Case No. 356 of 1987 as well as Fardbeyan of the aforesaid case as Exts. B & C respectively.

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The learned trial court, having relied upon testimonies of the prosecution witnesses as well as relevant documents, convicted and sentenced the appellant, in the manner as stated above.

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Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order, arguing that learned court below committed error in convicting and sentencing the appellant because, learned court below failed to appreciate this fact that P.W. 3

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Patna High Court CR. APP (SJ) No.285 of 2001 dt.18-04-2013

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came before the court, not with clean hands rather he suppressed several material facts. He further submitted that the deposition of the D.Ws. as well as Exts. B & C clearly suggest that the appellant had also lodged a case against P.W. 3 for the occurrence of the same day and in the aforesaid occurrence, the appellant had received injury but P.W. 3 suppressed the aforesaid fact and did not give any explanation in respect of injury of the appellant and, therefore, the entire prosecution case, becomes doubtful, due to the aforesaid reason and the appellant deserves to be acquitted.

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On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that P.W. 3 as well as P.W. 1 fully supported the occurrence and stated that it was the appellant, who gave dagger blows to P.W. 3 and, furthermore, P.W. 4 who examined P.W. 3 after the alleged occurrence, also found injuries on the neck of P.W. 3 and the injury report corroborates the deposition of P.W. 3 and, therefore, the prosecution successfully, proved its case and learned trial court, rightly, convicted and sentenced the appellant, passing the impugned judgment.

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As I have already stated that prosecution examined altogether, five witnesses and out of them; P.W. 3 is the informant whereas; P.W. 1 is said to be eye witness of the alleged occurrence and admittedly, he was working as Manager of Sri Ram Hotel at the relevant time. P.W. 2 is a formal witness who proved fardbeyan and so far P.W. 4 is concerned, he is the doctor and proved injury report of P.W. 3 as Ext. 3. Similarly, P.W. 5 is the investigating officer of this case.

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P.W. 1 stated that while he was at his shop, he heard

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Patna High Court CR. APP (SJ) No.285 of 2001 dt.18-04-2013

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noise in the wine shop and having heard the aforesaid noise, he went there and saw that Mahtabuddin and the appellant were asking wine from P.W. 3 and when P.W. 3 refused to oblige them, they threatened him to break the seal of the shop and, after that, the appellant gave Chhura blow thrice to P.W. 3. He further stated that after the occurrence, the coaccused, Mahtabuddin was caught. This witness, on being crossexamined by the defence, stated that he had not given statement before the police that his Boiyam was broken and on account of aforesaid Boiyam, an altercation had taken place. This witness also stated that he had not seen any injury on the person of P.W. 3 on the alleged date of occurrence. This witness also stated that he had not seen any injury on the person of the appellant.

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P.W. 3 supported his fardbeyan and produced blood stained clothes before the court at the time of his examination. P.W. 3 admitted at paragraph-16 of his cross-examination that the appellant and co-accused were well-known to him prior to the alleged occurrence. He admitted at paragraph-24 of his cross-examination that while he was admitted in hospital, he was handcuffed by the police. This witness admitted at paragraph-27 of the case diary that the appellant had also lodged a case against him for the occurrence of the same day. This witness was suggested by the defence that at the time of alleged occurrence, he was in Sri Ram Hotel and a quarrel had taken place in Sri Ram Hotel and in the aforesaid quarrel, he fell on the broken Boiyam and sustained injury and furthermore, in the aforesaid quarrel, he had assaulted the appellant. This witness denied the above-said suggestions of the defence.

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Patna High Court CR. APP (SJ) No.285 of 2001 dt.18-04-2013

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P.W. 4 found three incised wounds on the person of P.W. 3 and opined that one injury was grievous whereas; rest injuries were simple in nature. This witness admitted at paragraph-8 of his crossexamination that location of injuries of P.W. 3 reveals that he had sustained injury while he was in lying condition.

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P.W. 5 is the I.O. of the case. This witness stated that he got a telephonic message that a quarrel had taken place between two persons in Sri Ram Hotel and having got the aforesaid information; he went there and found P.W. 3 in injured condition in Sri Ram Hotel where, he recorded the fardbeyan of P.W. 3. He inspected the place of occurrence as disclosed by P.W. 3 but did not find any blood on the place of occurrence. He admitted at paragraph-8 of his cross-examination that he went there and found the appellant, lying in injured condition and recorded his statement and on the basis of his statement, Town P.S. Case No. 356 of 1987 was registered and he also issued injury report of the appellant. He further admitted at paragraph-10 of his cross-examination that he found broken Boiyam near counter of Sri Ram Hotel. This witness further admitted that Bangali Sah (P.W. 1) had stated before him that due to broken Boiyam, an altercation had taken place. P.W. 4 was, again, examined on behalf of the defence as defence witness No. 1 and stated that on 05-09-1987, at about 4.15 a.m. he examined the appellant, Moin Raza and found four injuries on his person and out of the aforesaid four injuries; two injuries were lacerated wounds whereas; two injuries were abrasions. The aforesaid injuries were simple in nature and caused by hard and blunt substances. D.W. 2 & D.W. 3 stated that on the alleged date of occurrence, an altercation had taken place between the appellant

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Patna High Court CR. APP (SJ) No.285 of 2001 dt.18-04-2013

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and P.W. 3 and in the aforesaid altercation, P.W. 3 assaulted the appellant.

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On perusal of the above-said evidences, it is explicit clear that for the occurrence of same day, the appellant had also lodged a case against the P.W. 3 and according to appellant, the alleged occurrence took place between him and P.W. 3 when a Boiyam was broken accidentally, and in the aforesaid quarrel, he sustained injury at the hands of P.W. 3 and similarly, P.W. 3 sustained injury when he fell down on broken Boiyam.

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P.W. 3 has admitted in his cross-examination that the appellant had filed case against him for the occurrence of the same day and similarly, P.W. 4, who, later on, was examined as D.W. 1, admitted that he had examined the appellant and found injuries on his person. Above all, P.W. 5 stated that having got information regarding the quarrel, when he proceeded towards the place of occurrence, he found the appellant, lying in injured condition in Sri Ram Hotel and furthermore, P.W. 1 stated before the police that the quarrel had taken place on account of broken Boiyam and, therefore, the aforesaid materials suggest this fact that P.W. 3 has not come before the court with clean hands and he suppressed the real facts and in my view, the learned counsel for the appellant, rightly submitted that the appellant deserved to get the benefit of doubt.

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On the basis of aforesaid discussion, I am of the opinion that the appellant is entitled to get the benefit of doubt and accordingly, this criminal appeal is allowed and, the impugned judgment of conviction and sentence order is hereby set aside.

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Patna High Court CR. APP (SJ) No.285 of 2001 dt.18-04-2013

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The appellant is on bail. He is discharged from the

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liabilities of his bail bonds.

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Patna High Court (Hemant Kumar Srivastava, J)
Dated/ the 18 th day
of April, 2013.
NAFR/A.K.V./-

Moin Raza v. State of Bihar

Case brief

What is this about?

What did the court decide?

Moin Raza v. State of Bihar

Case brief

What is this about?

What did the court decide?

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