Dismissed

Asgar Ali and Ors. v. The State Of Bihar

Patna HC3 Nov 2017CR. APP (SJ)/307/2015

Case brief

AI extract

What is this about?

Appeals against conviction under Section 307 IPC and Section 27 of the Arms Act arising from a 1997 firing incident in which the informant and two others sustained gunshot and sharp-cut injuries. The court held the injured witnesses' evidence consistent and trustworthy, found non-examination of the investigating officer and independent witnesses not fatal, and dismissed the appeals.

What did the court decide?

Appeals dismissed; bail bonds of the appellants in Cr. Appeal (SJ) No.307 of 2015 cancelled, they are directed to surrender within four weeks to serve the remaining sentence.

Asgar Ali and Ors. Vs The State Of Bihar — Murder and Culpable Homicide | Patna HC (2017)

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Patna High Court CR. APP (SJ) No.356 of 2015

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.356 of 2015

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Arising Out of PS.Case No. -32 Year- 1997 Thana -ASHOK PAPER MILL District- DARBHANGA

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===========================================================

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Naqui Haider @ Roshan, Son of Late Md. Muruza, R/o Village - Sidhauli, P.S. - A.P.M. (Ashok Paper Mill), District - Darbhanga.

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The State of Bihar

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.... .... Appellant/s Versus .... .... Respondent/s with

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===========================================================

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Criminal Appeal (SJ) No. 307 of 2015

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Arising Out of PS.Case No. -32 Year- 1997 Thana -ASHOK PAPER MILL District- DARBHANGA =========================================================== 1. Asgar Ali, S/o Late Mehdi Hasan 2. Asraf Ali, S/o Late Mehdi Hasan 3. Md. Bechu, S/o Late Md. Zamil 4. Parwez Alam @ Md. parwaz Alam, S/o Late Md. Sahazada, All are resident of village - Sindhauli, P.S.- Ashok Paper Mill, District- Darbhanga. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : (In CR. APP (SJ) No.356 of 2015) For the Appellant/s : Mr. Yogesh Chandra Verma-Sr. Advocate Mr. Zeyaul Hoda-Advocate For the Respondent/s : Mr. Abhay Kumar-A.P.P. (In CR. APP (SJ) No.307 of 2015) For the Appellant/s : Mr. Bhaskar Shankar-Advocate For the Respondent/s : Mr. Sujeet Kumar Singh-A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV JUDGMENT Date: 3-11-2017

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Cr . Appeal (S.J.) No.356 of 2015 wherein Naqui Haider

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@ Roshan is the appellant and Cr. Appeal (S.J.) No.307 of 2015 wherein Asgar Ali, Asraf Ali, Md. Bechu and Parwez Alam @ Md.

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Parwez Alam are the appellants have been heard together and are being disposed of by a common judgment on account of having been arisen out of common judgment of conviction dated 22.05.2015 whereby and whereunder appellant, Naqui Haider @ Roshan has been found guilty for an offence punishable under Section 307 of the I.P.C. and Section 27 of the Arms Act while remaining appellants under Section 307/ 149 of the I.P.C. and order of sentence dated 23.05.2015 whereby and whereunder each of the appellants has been directed to undergo R.I. for seven years as well as to pay fine appertaining to Rs.5,000/- under Section 307 I.P.C. as well as under Section 307/ 149 I.P.C. Appellant, Naqui Haider has further been sentenced to undergo R.I. for three years as well as to pay fine of Rs.1,000/- under Section 27 of the Arms Act and in default of payment of fine, to undergo S.I. for one year while Naqui Haider to undergo S.I. for two months relating to Section 27 of the Arms Act with a further direction to run the sentences, concurrently, by the Additional Sessions Judge-1^st , Darbhanga in Sessions Trial No.193 of 2002.

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Md. Hira (PW-1) gave his fard-bayan on 23.04.1997 at about 3.30 p.m. while he was admitted at R. B. Memorial Hospital in an injured condition alleging inter alia that yesterday (22.04.1997) at about 12.00 noon, he was at his house and was talking with his brother-in-law (Sala) Ladle, cousin brother Iqbal Nasir @ Marshal,

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brother of Marshal namely Pintu, other relatives, friends and during course thereof, were discussing to sort out a plan how they will manage/ participate in the marriage of his cousin brother (Fufera bhai) Nazib Akhtar @ Bhuttu, son of Late Md. Faruque of village-Sighauli, which was going to be solemnized at Kolkata on 27.04.1997. At that very moment, Ful Hasan, Gulam Mustafa, Asgar Ali, Gulam Haider, Asraf Ali, Shaukat Ali, Safdar Ali armed with pistol. Gulam Hasan armed with axe, Mehndi Hasan, Matin Hasan armed with Garasa, Sahjada, Parwez Alam, Jawed, Bechu, Naqui Haider, Sitare, Nirale, Arun Kumar Paswan armed with lathi, respectively along with 10-15 persons against whom, he claimed identification, came and surrounded them. Soon thereafter, Gulam Mustafa ordered to kill whereupon Sitare, Nirale, Naqui Haider, Gulam Haider fired from their pistol respectively, as a result of which, he sustained injury over his chest, shoulder (right side), at both sides of inter-coastal region (Panjar). He fell down. Then thereafter, they shot at his Sala Ladle, who also sustained injuries over his chest, shoulder. His cousin brother Marshal in order to save, lifted both of them over his vehicle and was to proceed, but the aforesaid accused persons surrounded his vehicle, broken the front glass and then, Gulam Hasan gave axe blow over neck of Marshal while Matin had given farsa blow over his head. Even then, Marshal managed to drive the vehicle and came at the

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hospital where all of them were being treated examined. It has also been disclosed that he has been informed by his parents that the accused persons have also committed loot at his house as well as caused mischief by fire setting ablaze motorcycle, scooter and other articles after they have been taken to hospital.

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After registration of Ashok Paper Mill P. S. Case No.32 of 1997, investigation commenced and concluded by way of submission of chargesheet against six accused persons, keeping the investigation pending against others, out of whom, proceeding against Mehndi Hasan was dropped vide order dated 02.05.2003, on account of his death, the trial against remaining accused ultimately concluded by way of recording finding of guilt and sentence, hence, this appeal.

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Defence case, as is evident from mode of crossexamination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has also been pleaded that no occurrence as alleged had ever taken place rather the prosecution party, who happens to be well-known of their notoriety, kidnapped Husn Ara, on account thereof, on the fard-bayan of Roshan Ara, her mother, Ashok Paper Mill P. S. Case No.18 of 1997 was registered wherein chargesheet was submitted. Furthermore, the prosecution party in association of other anti-social elements on the alleged date

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and time of occurrence, raided the house of Roshan Ara and during course thereof, indulged in different kind of criminal activity for that, on the fard-bayan of Mumtaz, father of Husn Ara, Ashok Paper Mill P. S. Case No.30 of 1997 was registered. It has also been stated that the villagers indulged in retaliation wherein the prosecution party might have sustained injuries and the accused persons being sympathizer of Mumtaz, been falsely dragged in this false, concocted case. Furthermore, it has also been stated that presence of anti-social element having duly armed with unlicensed firearms, who including the members of prosecution party indulged in criminal activities against Mumtaz and his family members is found duly substantiated as, were apprehended relating to Ashok Paper Mill P. S. Case No.30 of 1997. Furthermore, on the fard-bayan of Chaukidar Binod Paswan, Ashok Paper Mill P. S. Case No.31 of 1997 was registered against unknown for causing mischief by fire setting ablaze the motorcycle, scooter, harvested crop belong to prosecution party, wherein final report was submitted as clueless and to support the same, also exhibited relevant documents.

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In order to substantiate its case, prosecution had examined five PWs, out of whom, PW-1 Md. Hira, informant, PW-2 Md. Iqbal Nasir @ Marshal, PW-3 Ladle, PW-4 Dr. H. K. Das and PW-5 Dr. Madhvendra Kishore. Side by side, had also exhibited the

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documents viz. Exhibit-1 series, signature of informant, signature of other witnesses over the fard-bayan, Exhibit-2 series, injury reports and Exhibit-3 series, statement of witnesses recorded under Section 164 Cr.P.C. In likewise manner, defence though not examined any DW, but had exhibited viz. Exhibit-A Ashok Paper Mill P. S. Case No.18 of 1997, Exhibit-B, chargesheet of Ashok Paper Mill P. S. Case No.18 of 1997, Exhibit-B/1, supplementary chargesheet of Ashok Paper Mill P. S. Case No.18 of 1997, Exhibit-C, F.I.R. of Ashok Paper Mill P. S. Case No.30 of 1997, Exhibit-D, seizure list of Ashok Paper Mill P. S. Case No.30 of 1997, Exhibit-E, forwarding report of Ashok Paper Mill P. S. Case No.30 of 1997, Exhibit-F, certified copy of chargesheet of Ashok Paper Mill P. S. Case No.30 of 1997, Exhibit-G, certified copy of order sheet of Ashok Paper Mill P. S. Case No.31 of 1997, Exhibit-H, certified copy of final form of Ashok Paper Mill P. S. Case No.31 of 1997, Exhibit-I, fard-bayan of Ashok Paper Mill P. S. Case No.31 of 1997.

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While assailing the judgment of conviction and sentence, it has been submitted on behalf of learned counsel for the appellants that as the trial had suffered from inherent defects, on account thereof, did not justify the finding recorded by the learned lower Court. In order to substantiate such plea, it has been submitted that from the fard-bayan itself, it is apparent that during course of

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occurrence, informant, Ladle, Iqbal Nasir along with his brother Pintu, other friends, relatives were gossiping making plan in order to relish marriage of Fufera brother, but none other has been examined on behalf of prosecution nor there happens to be an explanation at the end of the prosecution. The aforesaid activity has purposely been taken up by the prosecution in the background of the fact that they themselves have indulged in criminal activity against Mumtaz after forming an unlawful assembly, which was reported to the police and during course thereof, a raid was conducted and some of them were apprehended which the witnesses had admitted during course of crossexamination. Apart from this, it has also been admitted at their end regarding presence of a criminal case lodged on account of kidnapping of Husn Ara, though defence had not examined any DW, but from the cross-examination of the witnesses, it is manifest that there happens to be every possibility of their victimization at the end of the villagers, who came in action in retaliation of illegal activity of the prosecution party. In the aforesaid facts and circumstances of the case, even though there happens to be presence of injury for that, the appellants would not be identified as an author.

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Apart from this, it has also been submitted that nonexamination of the I.O. had caused serious prejudice to the appellants. Had there been examination of the I.O., then in that event, the

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appellants would have been in a position to bring the material development by way of exaggeration since before their initial version by the witnesses on the record as well as would have tested veracity of truthfulness of prosecution version, as from the evidences, probability of retaliation by the villagers would not be ruled out on account of illegal activities having at their end, whereupon some of the members were apprehended and for that, on the fard-bayan of Mumtaz, Ashok Paper Mill P. S. Case No.30 of 1997 was registered.

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Apart from this, it has also been submitted that none of independent witnesses have been examined in this case and whoever been examined, are own kith and kin coupled with non-examination of elderly family members, who were present at the house. Furthermore, it has also been submitted that apart from material development in their evidence, there happens to be inconsistency persisting in their evidences over genesis as well as manner of occurrence and that being so, the prosecution version became unreliable whereupon, did not justify the finding recorded by the learned lower Court.

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On the other hand, counter-meeting the submission having been made on behalf of learned counsel for the appellants, it has been submitted on behalf of the learned Additional Public

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Prosecutor that all the injured have been examined, who had sustained firearm injury as well as sharp cut injury at the hands of appellants corroborated by the doctor and for that, the appellants have got no explanation. Furthermore, it has also been submitted that all the material witnesses that means to say, PW-1, PW-2 and PW-3 are an injured and they are consistent over the manner of occurrence, place of occurrence, time of occurrence and so, their evidences rightly been accepted by the learned lower Court during course of recording finding of guilt, the subject matter of instant appeal. It has also been submitted that all those cases have purposely been instituted in order to save their skin by the henchmen of appellants taking undue advantage of absence of prosecution party, which was on account of having been admitted at the hospital in an injured condition for the injuries having been inflicted by the appellants. So, the judgment of conviction and sentence recorded by the learned lower Court is fit to be confirmed.

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PW-4 had examined Md. Hira the injured on the same day and found following injuries over his person:-

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I. Penetrating wound about 1 cm diameter with charring of skin and muscle just over the mid of serum.

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II. Penetrating wound of about 1 cm in

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diameter with charring of skin and muscle just below right clavicle of the junction of lateral middle part of right clavicle.

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III. Penetrating wound of 2 cm approx 2 cm in diameter with charring of skin and muscle on right renal angle.

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IV. Penetrating wound of about 1 cm diameter with charring of skin and muscle on left side of lower cage chest on mid auxiliary line.

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There was laceration of left kidney and spleen with collection of blood and clot in intraperitrental cavity splenectory was done out left kidney was repaired and patient developed paraplegias.

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PW-5 had examined Ladle and found following

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injury:-

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I. Penetrating wound entry about 1 cm in diameter with charring of skin, muscles upper end with of left side of the chest just below mid clavicle line and passing through wound of exit about 3 cm. in diameter with charring of skin muscle with communicated fracture of upper end of humorous of left side postro lateral. X-ray shows fracture.

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Time of injury within six hour and nature of

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injury is grievous caused by firearms.

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He had also examined Md. Marshal @ Iqbal Nasir on the

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same day and found following injury:-

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 Incised wound about 5” x ½” deep with chunk of bone detached room mastoid process. Posteriority to the right ear.  Lacerated wound about ½” x ¼” bone deep in the mid of the forehead. Time of injury within six hours and injury number one is grievous caused by sharp cutting weapon where as injury no.2 is simple caused by hard blunt substance.

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From their cross-examination, it is apparent that nature of injuries have not been challenged nor the evidence of the respective doctor has been shaken to such extent to disbelieve their finding.

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So far the mode of appreciation of injured witness as well as sanctity to be applied while appreciating the evidence of an injured happens to be time tested repeatedly. In Jodhan vs. State of Madhya Pradesh reported in (2015) 11 SCC 52 , it is been held:-

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“21. Tested on the backdrop of aforesaid enunciation of law, we are unable to accept

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the submission of the learned counsel for the appellant that the High Court has fallen into error by placing reliance on the evidence of the said prosecution witnesses. The submission that when other witnesses have turned hostile, the version of these witnesses also should have been discredited does not commend acceptance, for there is no rule of evidence that the testimony of the interested witnesses is to be rejected solely because other independent witnesses who have been cited by the prosecution have turned hostile. Additionally, we may note with profit that these witnesses had sustained injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P., (2010) 10 SCC 259, it has been observed that:

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“28. The question of weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has

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himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.”

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It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 Malkhan Singh v. State of U.P., (1975) 3 SCC 311, Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje v. State of Maharashtra, (2010) 6 SCC 673 and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719.

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22. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As

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has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuiltguarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned counsel for the appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge.”

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Non-examination of I.O. could not be held fatal to the prosecution by way of universal application rather it varies from case to case depending upon its fact. In Baldev Singh vs. State of Haryana reported in 2016 (1) CRI.L.J. 154 , it has been held:-

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“16. Contention at the hands of the learned Senior Counsel for the appellant is that nonexamination of Chander Singh-SI who prepared rukka and who investigated the case raises serious doubts about the prosecution case. Material on record would show that Chander Singh-SI who investigated the case was not examined by the prosecution in spite of several opportunities. No doubt, it is always

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desirable that prosecution has to examine the investigating officer/police officer who prepared the rukka. Mere non-examination of investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution case. Whether or not any prejudice has been caused to the accused is a question of fact to be determined in each case.”

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Non-examination of independent witness as well as

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examination of the family members will not cast dent in the prosecution case and that has been taken into consideration in Yogesh Singh vs. Mahabeer Singh and others reported in 2017 CRI.L.J. 291 , it has been held:-

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Testimony of Interested/Inimical Witnesses

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“24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364: 1954 SCR 145, is one of the earliest cases on the point. In that case, it was held as follows:

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“A witness is normally to be considered independent unless he or she springs from

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sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”

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25. Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 : (1977) 4 SCC 452, this Court held:

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“It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court

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relying on the said evidence.”

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26. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:

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“.. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”

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27. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court:

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“The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.”

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28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and

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trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).”

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In the same judgment at Para-29, the Hon’ble Apex Court had dealt with nature of discrepancies visualizing in the evidence of the PWs which could/ could not affect the testimony as well as having its impact upon the prosecution case:-

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Discrepancies in Evidence

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“29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be

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accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC

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191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796).”

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Keeping aforesaid settled principle in the backdrop, now the evidence of the witnesses is to be scrutinized. It is needless to say that all the materials witnesses, who have been examined, are an injured as well as their presence have not been denied by the appellants and in likewise manner, the injuries having sustained by them with a counter-version that as the prosecution party forcibly kidnapped Husn Ara at an earlier occasion and subsequently thereof, indulged in criminal activity with them for which, Ashok Paper Mill P. S. Case No.30 of 1997 was registered, in retaliation, the villagers assaulted them. Although, from the fard-bayan of Mumtaz, father of Husn Ara, Ashok Paper Mill P. S. Case No.30 of 1997 was registered having the same date of occurrence and during course thereof, large number of persons were apprehended at the spot, who were judicially remanded on a requisition of the I.O. made on 23.04.1997. After going through the F.I.R., it is apparent that there happens to be complete silence with regard to the injuries sustained by the prosecution party, though the forwarding report discloses regarding

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apprehended accused that too, sustained during course of apprehension. It is also evident from the search-cum-seizure list that pistol was seized from the possession of Guddu, son of Nurul Hoda. That means to say, brother of informant Md. Hira.

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Be that as it may, the obligation happens to be on the prosecution to substantiate its case beyond all reasonable doubt and the evidence of defence is to be seen in a way to find out onus having shifted upon them, been duly discharged?

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PW-1 had alleged that on the alleged date and time of occurrence, he was at his Darwaza. He was gossiping over preparation of marriage of his Fufera brother Nazib Akhtar at Kolkata and at that very moment, Haseri came and cordoned them. He was talking amongst his brothers, friends and named some of them as Md. Guddu, Bobby, Marshal, Pinku, Ladle etc. He had identified some of the members of the mob as Gulam Mustafa, Sitare, Nirale, Mehndi Hasan, Asgar Ali, Ashraf Ali, Shaukat Ali, Md. Fuddu Hasan, Gulam Hasan, Gulam Haider, Safdar Ali, Md. Matin, Md. Shahjada, Parwez Alam, Jawed, Naqui Haider, Bechu, Arun Kumar and had also claimed identification against the others. On an order of Gulam Mustafa, Sitare fired aiming him which caused injury over his chest, Nirale had fired from his pistol causing injury over his right shoulder,

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Naqui Haider fired from his pistol causing over his right inter-coastal region (Panjar), Gulam Haider had fired causing injury over his left inter-coastal region (Panjar), then thereafter, Sitare shot at Ladle causing injury over his chest and Gulam Haider shot at over his left shoulder. His cousin brother Marshal lifted them in order to provide medical facility, who was also victimized after smashing front glass panel of his vehicle and then, assaulting by means of axe by Gulam Hasan causing injury over right side of his neck followed by Farsa blow by Matin over his head. However, he anyhow managed to drive up to R.B. Memorial Hospital where they all were treated. Police came before whom, he had recorded his fard-bayan over which he put his signature (identified). He had further stated that aforesaid occurrence was committed on account of previous enmity. He had further stated that his parents have disclosed that the members of the Haseri had ransacked his house, set ablazed scooter, motorcycle as well as harvested crops kept in the Khaliyan. Considering the nature of the injury, he was referred to AIIMS, New Delhi and then, was also treated at Apollo, New Delhi. Due to firing, his spinal cord fractured as a result of which, he became crippled, identified the accused in dock. During cross-examination at Para-3, he had stated that a false case has been instituted relating to kidnapping of Husn Ara. It has also been stated by him that he is unaware whether Husn Ara has been

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recovered or not. He showed his ignorance relating to apprehension of large number of anti-social elements with arms and ammunitions from his house on the alleged date and time of occurrence. In Para-4, he had admitted that the house of Roshan Ara lies in front of his house intervened by a road. He had further admitted that a false case has been instituted by the husband of Roshan Ara on the same day and it is false to say that 17 persons were apprehended from his house relating to the said case along with arms and ammunitions, wherein, charge had already been framed against nine accused persons. He is unable to say, who are the accused persons. In Para-5, there happens to be detailed description of genealogy of his family. Marshal happens to be son of Nazul Hoda and is his cousin brother. He is not remembering whether so many cases have been drawn up against him. In Para-6, he had stated that at the time of occurrence, 10-12 persons were sitting at his Darwaza including his family members as well as friend of his cousin brother, but he is unable to disclose their identity. At that very time, none of his elderly family members were present. In Para-9, he had admitted presence of one Hasib brother of Nasib Akhtar, an accused along with him relating to kidnapping case. In Para-10, he had stated that some of the members of the Haseri came from Eastern side while some from Western side. The persons, who came from Western side, out of them, some were identified, who

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happen to be Md. Bechu, Naqui Haider, Arun Kumar, who were also armed with deadly weapon. The persons, who came from Eastern side were also duly armed which they used during course of commission of the occurrence. In Para-12, he had stated that the Haseri cordoned them all around on account thereof, he is unable to disclose, who was north to him. Further stated that his cousin brother along with his friends were present at North, South, East, West to him at the Darwaza. They were about 20-22. The members of the Hanseri did not fire just after arriving. Firing was made from Eastern as well as Western side one by one. He along with Ladle was sitting, both having northern front. They both sustained firearm injury within 3-4 minutes. First of all, he was shot at and then, Ladle. Then had stated that bullet remained inside his body, while one of the bullet passed through. In Para-13, there happens to be topography of the Darwaza where they were sitting. He had further stated that his parents, sisters, uncle, aunt were inside the house as well as over roof. They had not come to lift them. Marshal lifted them in his Maruti Van. While he was to proceed, the members of the Hanseri smashed front glass and then, assaulted by means of axe as well as Farsa. Then there happens to be description with regard to treatment having carried out at the hospital under Para-15. He had further admitted at Para-17 that his cousin brother, brother and friends are an accused relating to Arms

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Act. In Para-18, he had shown reason of animosity with Naqui Haider. Then there happens to be contradiction relating to his fard-bayan. In Paras-24, 25, there happens to be suggestion that they had raided house of the Mumtaz having joined by anti-social elements, assaulted family members of Mumtaz, whereupon police was informed, came and arrested. In Para-33, there happens to be disclosure regarding land dispute with Asgar and Asraf. In Para-34, there happens to be admission at his end that he happens to be accused in Ashok Paper Mill P. S. Case No.30 of 1997. In Para-36, he had stated that firstly he sustained injury over his chest followed by another round and then, another round, then another round and then thereafter, Ladle was shot at covering approximately 4-5 minutes. In Para-39, he had disclosed that on the following day, he regained sense at the hospital. In Para31, he had shown ignorance regarding accused persons of this case being witness in the earlier case. He had also admitted presence of Ashok Paper Mill P. S. Case No.18 of 1997, Ashok Paper Mill P. S. Case No.30 of 1997 against him under Para-32. He had also admitted presence of Ashok Paper Mill P. S. Case No.28 of 1996 instituted by Jaitun Nisha, which ended in compromise. In Para-35, he had shown ignorance regarding Ahmad, Mohammad, Umesh Kumar Mahaseth, Niraj Kumar Singh, Pintu Kumar, Sonu, Shivtullah, Tofique Ahmad, Abdul Hasi Warsi, Md. Jamal as well as others were sitting along with

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him. In Para-36, he had admitted that Guddu and Md. Raju were along with him. Then, he had denied whether police had seized motorcycle from his place. Then had denied the suggestion that Asraf and Asgar have been falsely implicated.

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PW-2 is another injured Iqbal @ Marshal. He had deposed that on the alleged date and time of occurrence, he along with his brother Pintu had come to his native place where they were discussing with his cousin brother regarding preparation relating to marriage of another cousin brother. While they were gossiping, the mob consisting 30-34 persons armed with deadly weapon, came and encircled. Gulam Mustafa ordered to kill, whereupon, Sitare, Nirale, Gulam Haider, Naqui Haider @ Roshan fired at Md. Hira by gun. Two shots having fired by Sitare stroke over Hira causing injury over chest, firing made by Nirale caused injury over right shoulder, Gulam Haider and Naqui Haider shot at left-right Panjar respectively. Hira fell down having been in pool of blood. Then again, all these four shot at brother-in-law (Sala) of Hira namely Ladle causing injury over his chest as well as shoulder. Then thereafter, he along with his brother lifted both of them for their treatment and during course thereof, they all have surrounded his vehicle, Gulam Hasan smashed his front glass and then, Matin gave axe blow, again Matin had given axe blow over his head causing injury thereupon. Anyhow, he succeeded in driving

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the vehicle to R.B. Memorial Hospital where they were admitted, treated. On account of injury, Hira became disabled and is confined to wheel-chair. He identified Gulam Hasan, Fool Hasan, Gulam Mustafa, Parwez, Bechu, Shahjada, Roshan, Matin, Jawed out of the unlawful assembly. During cross-examination, he had stated that he is residing at Kotwali Chowk, Laheria Sarai. Whether his land lies in the village or not, he has got no knowledge. His father would be able to say. He had further stated that he does not know Roshan Ara. In Para4 he had admitted that he had gone to Jail relating to abduction case and remained there approximately for seven months. In Para-6, he had admitted presence of so many cases relating to land. In Para-7, he had further admitted that case is going on relating to kidnapping of daughter of Roshan Ara wherein his father happens to be an accused. In Para-10, he had deposed that at the time of gossiping, his uncles Nurul Hoda, Nazbul Hoda were also present. His father was not present. Villagers were not present. Marriage was to solemnize after four days of the alleged occurrence. The brother of bride-groom was also present in the discussion. In Para-11, he had stated that firstly he had gone to the place where marriage was to be solemnized and then, came to his place. He stayed at the place of his Fua for ten minutes, talked with his Fufa and then, came to the place of his uncle Nurul Hoda. In Para-12, he had stated that occurrence took place at the

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house of his uncle Nurul Hoda. When he reached at the place of occurrence, he had seen Ladle, Hira, Guddu since before. He along with his brother joined. All of them sat at Darwaza which has got northern front. He is unable to disclose the length and breadth. Road lies in front of Darwaza. In Para-14, he had stated that Haseri came from northern side, they were sitting at the Darwaza having northern front. He was sitting at the Western flank while others were sitting at the Eastern flank. Hira had Western front while he had eastern front. Hira was shot at, at the distance of two feets, there was 8-10 rounds of firing by the accused persons. Hira had sustained 3-4 injuries. He was not at all aimed. Neither his brother nor his Fufera brother was aimed. First shot was given at Hira while he was standing and then, he fell down. Thereafter, he was shot at repeatedly from a distance of one feet. He was lying over backside. At that very time, he was north to him. Two rounds were fired at Ladle. They had not escaped there from to save their skin. None of the members of the mob gave Farsa, spear, lathi blow over Ladle as well as Hira. In Para-15, he had stated that he is not remembering whether gun was single barrel or double barrel. In Para-17, he had stated that while he was lifting Hira and Ladle at that very moment, Gulam and Matin assaulted him. He was assaulted with axe over his neck and then, Matin gave farsa blow. Matin had not inflicted axe blow. Even after sustaining injuries, he

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remained conscious. Matin had given farsa blow while he was standing. Farsa blow was given from front side. He had sustained single farsa blow. He was not at all shot at. They were not assaulted after his assault. In Para-19, he had stated that he reached at the Hospital at about 4.30 p.m. After reaching at the hospital, they all became unconscious. When he regained sense, he found his father present by his side. He regained sense on the following day at about 7.30 p.m., police came to hospital. Even after regaining sense, he had not gone to see his brother as he was physically incapable. In Para-20, he had stated that front glass of Car was smashed and then, he had sustained injury. Then had denied the suggestion that they have not sustained injury in a manner as disclosed by him. He had further denied the suggestion that they had not gone to the hospital.

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PW-3 is Ladle, who had deposed that on the alleged date and time of occurrence, he was present at the place of his brotherin-law (Bahnoi) in order to discuss the strategy to be followed during course of marriage of his brother (Fufera brother). At that very moment, mob came at the Darwaza of his brother-in-law wherein he had identified Gulam Mustafa, Sitare, Nirale, Matin, Fool Hasan, Gulam Hasan, Gulam Safdar, Gulam Haider, Mehndi Hasan, Asgar Ali, Shaukat Ali, Ashraf Ali, Shahjada Parwez, Jawed, Bechu, Arun Kumar Paswan, Naqui Haider @ Roshan along with 10-15 persons

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against whom claimed identification, having variously armed with deadly weapon. On an order of Gulam Mustafa, Gulam Haider shot at Hira causing injury over his shoulder followed by Sitare and Nirale on account of which, Hira sustained injury over his both Panjar. Naqui Haider @ Roshan fired which struck over chest of Hira. When he rushed, he was shot at by Gulam Haider as well as Shaukat Ali, which struck over chest left side. Then thereafter, the accused persons lit fire in the harvested wheat crop. They had also lit fire in the motorcycle. Then thereafter, Marshal while lifting both of them in a way to hospital, was surrounded by the members of the mob, who smashed front glass of his car and then, Gulam Hasan gave axe blow over neck of Marshal while Matin gave Farsa blow over head of Marshal. Anyhow, Marshal carried them to R. B. Memorial Hospital where they were admitted and treated. His statement was also recorded under Section 164 of the Cr.P.C. During cross-examination, he had admitted presence of case against him as well as his relatives launched by Mumtaz, which is going on. He had further admited presence of kidnapping case at the instance of Roshan Ara, wife of Mumtaz with regard to kidnapping of her daughter Husn Ara. He had further admitted that on the alleged date, some of the persons coming from City were arrested in the village. Then had shown ignorance with regard to criminal conduct of Marshal and his family members along

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with the fact that they happen to be habitual criminals. He had further stated that about 26 persons were present at the Darwaza of Hira, all were youngsters. Neither bride-groom nor his father was present. He had further stated that his father is already dead. Gossiping began right from 12.00 noon, soon thereafter, Haseri came and having an order, firing began. Marshal was present in the meeting. First of all, Hira was shot at and then, he himself. At that very time, firing was made from the sahan. All the members of Haseri were present at one place. Gulam Mustafa was leading the Hanseri, his assailant was two meter away at southern side. 10-15 rounds of firing was made. Accused persons set ablaze motorcycle, which was parked at Sahan, vehicle of Marshal was not put on fire. When Marshal lifted them and was to carry, then thereafter, smashing front glass of the vehicle, he was assaulted. Then had denied the suggestion that no such type of occurrence had ever taken place.

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From the nature of cross-examination, it is evident that all the PWs have not been cross-examined over P.O. So far manner of assault is concerned, they also happen to be consistent. From the evidence of respective witnesses, it is apparent that there happens to be no material development or contradiction visualizing from their evidence, save and except as disclosed by the informant (PW-1) relating to the fard-bayan. After parallel scrutiny of the same,

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it is evident that whatever assertion has been made in the fard-bayan, the same has been properly explained during course of evidence and that being so, it is not going to affect upon the credibility of the witnesses. Furthermore, it is settled proposition of law that fard-bayan should not be encyclopaedia, giving minute to minute detail. Moreover, as held, gist is there, which has been explained. Though, from the evidence of PWs, it is evident that some sort of minor discrepancies is found amongst them with regard to location of the Hanseri as some of them have deposed that members of the Hanseri encircled them all around while some had said that they remained at one place. However, with regard to manner of assault, there happens to be no contradiction.

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It is true that no independent witnesses have been examined. It is also evident that other family members have also not been examined. The core question in the aforesaid background happens to be whether prosecution evidence be brushed aside on that very score. The Hon’ble Apex Court in Nirpal Singh vs. State of Haryana reported in (1977) 2 SCC 131, it has been held:-

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“16. …………………………………………………... The real question for determination is not as to what is the effect of non-examination of certain witnesses as the question whether the witnesses

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examined in Court on sworn testimony should be believed or not. Once the witnesses examined by the prosecution are believed by the Court and the Court comes to the conclusion that their evidence is trustworthy, the non-examination of other witnesses will not affect the credibility of these witnesses. We would, however, like to indicate that it is not at all necessary in law to incorporate the statements of the witnesses in the inquest report. The inquest report is to be made by the Investigating Officer just to indicate the injuries which he has found on the bodies of the deceased persons. It may be witnessed by one or two person but it is not at all necessary for the Investigating Officer to record the statements of the witnesses or to get the statements of witnesses signed on the inquest report and incorporate the same in it which introduces an element of chaos and confusion and demanding an explanation from the prosecution regarding the statements made therein. For these reasons, therefore, we are unable to hold that merely because Roop Singh and Sardara Singh have not been examined, the prosecution case is not proved. We might mention that it is not necessary for the prosecution to multiply witnesses after witnesses on the same point. In the instant case, once the

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evidence of the eye witnesses is believed, there is an end of the matter.”

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Much stress has been led on behalf of appellants

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regarding presence of three cases, that means to say, the first one lodged by Roshan Ara for kidnapping of Husn Ara, which happens to be prior to the date of occurrence. The second case instituted by Mumtaz, father of Husn Ara on the alleged date of occurrence itself and the third case was at the instance of Chaukidar against unknown for setting ablaze the motorcycle, harvested crop belonging to the prosecution party which ended in submission of final form clueless and in the aforesaid background, it has been submitted that villagers have retaliated feeling aggrieved by illegal activity of the prosecution party. Had there been consistency in the defence version, more particularly, coming out from the fard-bayan of Mumtaz relating to causing of firearm injuries over the person of Hira and Ladle (PW-1 as well as PW-3) sharp cutting injury over PW-2, during course of commission of crime at his place, then in that circumstance, the matter would have been different coupled with, having challenged over the alleged place of occurrence. From perusal of fard-bayan of Mumtaz, it is apparent that P.O. of that very case happens to be other than the P.O. of instant case as well as there happens to be no whisper over assault having over the person of prosecution party. That being so, the

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firearm injuries having over the person of PW-1 and PW-3, sharp cut injuries over PW-2 are found unexplained at their end.

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After giving curious, anxious approach to the evidence available on the record, it is found and held that prosecution succeeded in substantiating its case. Consequent thereupon, appeals are dismissed. Appellants of Cr. Appeal (S.J.) No.307 of 2015, Asgar Ali, Asraf Ali, Md. Bechu and Parwez Alam @ Md. Parwaz Alam are on bail, hence their bail bonds are cancelled directing them to surrender before the learned lower Court within four weeks to serve out remaining part of sentence, failing which, the learned lower Court will be at liberty to proceed against the appellants in accordance with law. So far appellant of Cr. Appeal (S.J.) No.356 of 2015, Naqui Haider @ Roshan is concerned, he is already under custody, which he will remain till saturation of period of sentence.

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(Aditya Kumar Trivedi, J)

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Vikash/-

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AFR/NAFR	A.F.R.
CAV DATE	12.10.2017
UploadingDate	03.11.2017
Transmission Date	03.11.2017

Asgar Ali and Ors. v. The State Of Bihar

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Asgar Ali and Ors. v. The State Of Bihar

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