Allowed

Naseer Ali @ Naseer Ahmad v. The State Of Bihar

Patna HC12 Sept 2017CR. APP (SJ)/731/2015

Case brief

AI extract

What is this about?

The Patna High Court allowed the criminal appeal, acquitting the appellant. The Court found the prosecution failed to establish the case beyond reasonable doubt due to contradictions between ocular and medical evidence, lack of blood evidence at the scene, and the solitary, uncorroborated testimony of the injured informant.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellant acquitted from all charges; directed to be released from custody forthwith.

Naseer Ali @ Naseer Ahmad Vs The State Of Bihar — Murder and Culpable Homicide | Patna HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.731 of 2015

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Arising Out of PS.Case No. -126 Year- 2012 Thana -KATEYA District- GOPALGANJ

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Naseer Ali @ Naseer Ahmad son of Gafoor Ali @ Gafoor Mian, Resident of Village- Manjharia, Police Station Kateya, District- Gopalganj.

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.... .... Appellant/s

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Versus

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The State of Bihar

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.... .... Respondent/s

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=========================================================== Appearance:

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For the Appellant/s : Mr. Neeraj Kumar @ Sanidh, Advocate Mr. Raghav Pd., Advocate For the State : Mr. Bipin Kumar (A.P.P.)

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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL ORAL JUDGMENT Date: 12-09-2017

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This appeal has been filed against the judgment and order of conviction dated 08.09.2015 and sentence dated 11.09.2015 passed by the 1^st Additional Sessions Judge, Gopalganj in Sessions Trial No. 354/ 2012 / CIS No. 2711 of 2013, arising out of Kateya P.S. Case No. 126 of 2012, whereby learned lower court convicted the accused Naseer Ali @ Naseer Ahmad for the offences punishable under Sections 307, 326 & 341 of the Indian Penal Code and sentenced him to undergo R.I. for 10 years under Section 307 IPC and also slapped with fine of Rs. 10,000/- and in default of payment of fine further to undergo S.I. for three months. He has further sentenced him to undergo R.I. for five years under Section 326 IPC and S.I. for one month under section 341 IPC. All the sentences were directed to run

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Patna High Court CR. APP (SJ) No.731 of 2015 dt.12-09-2017

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concurrently.

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Factual matrix of the case is that Kateya P.S. Case No. 126 of 2012 was instituted under sections 341, 324 and 307 IPC against the accused Naseer Ali on the basis of fardbeyan of Ali Mohammad, son of Late Madin Miyan, village-Manjharia, P.S. Kateya, District-Gopalganj, recorded by P.S.I. Amit Kumar Singh of P.S. Kateya on 04.05.2012 at 21:00 hours at Referral Hospital, Kateya with the allegations in succinct that on 04.05.2012 at about 8:00 P.M. while he was proceeding to his house in village-Manjharia on bicycle after shutting down his tailoring shop and arrived near graveyard in front of the aforesaid village, his co-villager Naseer Ali intercepted him and gave three knife blows in his stomach. He made alarm and ran two-four steps towards his village but fell down. Responding the alarm, some persons rushed there and took him to Referral Hospital, Kateya on a motorcycle where he is undergoing treatment. The bone of contention is that he had got deposited some money of Naseer Ali @ Chhotu in the Nexus Company but as the said company had escaped, he was mounting pressure upon him for the said money.

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Aforesaid case was investigated by the Police and on conclusion of investigation the I.O. submitted charge sheet under sections 341, 324 and 307 IPC against accused Naseer Ali.

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After receiving the charge sheet & case diary and

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Patna High Court CR. APP (SJ) No.731 of 2015 dt.12-09-2017

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perusing the same, learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions. On transfer the case finally came in seisin of 1^st Additional Sessions Judge, Gopalganj for trial.

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Charge against the accused Naseer Ali was framed under Sections 341, 307 and 326 IPC. Charge was read over and explained to him to which he pleaded not guilty and claimed to be tried.

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6.To substantiate its case, in ocular evidence, the prosecution has been able to examine altogether seven prosecution witnesses, namely, Md. Shamim Ansari (PW-1), Rozid Ansari (PW2), Khaitun Khatun (PW-3), Naseeruddin Ansari (PW-4), informant Ali Muhammad Ansari (PW-5), I.O. Amit Kumar Singh (PW-6), and Dr. Vijay Kumar Sharma (PW-7). In documentary evidence the prosecution has also filed and proved several documents.

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Statement of the accused was recorded under Section 313 Cr.P.C. The case of defence is complete denial of the occurrence claiming himself to be innocent. The accused has neither adduced any ocular nor documentary evidence in buttress of his case.

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After hearing the parties and perusing the records, learned lower court passed the impugned judgment and order of conviction and sentence as detailed in earlier paragraph.

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Being aggrieved and dissatisfied with the aforesaid

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Patna High Court CR. APP (SJ) No.731 of 2015 dt.12-09-2017

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judgment and order of conviction and sentence, the convict has preferred the present appeal.

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The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellant beyond all reasonable doubts or not.

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It is submitted by learned counsel for the appellant that as per the prosecution case and account of witnesses, the appellant has given three knife blows in the stomach of the informant but the doctor has found only one injury in his stomach which goes to rule out the prosecution. It is further submitted that as per the witnesses’ account there was profuse bleeding from the wound and wound of the victim was tied with the gamchcha but the I.O. has not found any blood stain at the place of occurrence and the said gamchcha was also either not produced before I.O. or seized by him. As per the prosecution case and witnesses’ account, the time of occurrence is 8:00 to 8:30 P.M. and it was a dark night at the time. Neither the informant in his fardbeyan or his deposition nor any witnesses have pointed out about any source of identification at the place of occurrence. I.O. has also not found any source of identification at the place of occurrence. Hence, for the want of source of identification being a dark night it was quite impossible to identify and ascertain the assailant which creates doubt about the complicity of the appellant in the occurrence.

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Patna High Court CR. APP (SJ) No.731 of 2015 dt.12-09-2017

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On the other hand, learned A.P.P. advocating the correctness and validity of the impugned judgment and order of conviction and sentence, has submitted that the witnesses examined by the prosecution have supported the prosecution case in toto and the ocular evidence also stands corroborated by the medical evidence and the learned lower court correctly appreciating the facts and evidence available on record has passed the impugned judgment and order of conviction and sentence and there is no illegality and infirmity in the impugned judgment and order and is liable to be upheld and this appeal has no substance in it and is liable to be dismissed.

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13.From perusal of the fardbeyan of the informant, it appears that there is specific case of the informant that on the date of occurrence at about 8:00 on the way to his home when he arrived near the graveyard located in front of his village Manjharia, appellant Nassir Ali intercepted him and gave three knife blows on his stomach. P.W. 1 Md. Shamim Ansari has stated in para-1 of his Examination-in-Chief that he witnessed one major and two minor injuries caused by knife on the stomach of Ali Mohammad. P.W. 4, Naseeruddin Ansari has stated in para-18 of his cross-examination that there were three injuries on the stomach of Ali Mohammad. Which means, as per prosecution case and witnesses’ account, there

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must be three injuries on the stomach of the informant but from perusal of the injury report and testimony of the doctor (P.W.7) who had examined the informant, it appears that the doctor has found only one incised wound on the abdomen of the informant. Thus, there is a vital and major contradiction between the prosecution case and ocular evidence of prosecution on the one hand and the medical evidence on the other hand, regarding the number of injuries found on the person of the informant. As per the statement of the doctor in his Examination-in-Chief the depth could not be assessed due to profuse bleeding which means that from the wound of the informant the blood must have fallen on the place of occurrence. But from perusal of the statement of I.O. (P.W.6) it appears that the I.O. has not found any blood on the place of occurrence as in para-9 of his crossexamination, he has stated that it is not mentioned in the case dairy as to whether any blood was found on the place of occurrence.

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P.W.-5, the informant has stated in para-8 of his crosssubmission that his shirt and waist were slit by the knife blow and his entire cloths were stained with blood. P.W. 1 has stated in paragraph3 of his Examination-in-Chief that they took Ali Mohammad to the Referral Hospital, Kateya by tying his abdomen with gamchacha . P.W. 2, has also stated in paragraph-1 of his Examination-in-Chief that he found Ali Mohammad smeared with blood and the blood was

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oozing from his stomach. Further, P.W. 2 in para-13 of his crossexamination has stated that Ali Mohammad was rushed to the hospital by tying his wound with gamchacha of Krishna Murari Pathak. P.W.-4, in para-15 of his cross-examination has stated that the wound of Ali Mohammad was tied with cloth by the time he arrived at the place of occurrence but neither the aforesaid blood stained attire of the informant nor any gamchacha by which the wound of the injured was tied and which must have been stained with the blood, has been produced before the I.O. or seized by the I.O.

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From perusal of the testimony of the witnesses, it appears that the informant is the solitary eye-witness of the occurrence being the injured of the case as as per the fardbeyan itself the informant has stated that sustaining injuries, he raised an alarm and responding the alarm made by him, some people rushed there and took him to the hospital on motorcycle. Further the informant (PW 5) in para-3 of his Examination-in-Chief has stated that after receiving knife blow he rushed towards village staggeringly then the villagers arrived and P.W. 1 (Md. Shamim Ansari) has stated in para-1 of his examination in chief that when they rushed to Ali Mohammad responding hulla made by him he witnessed one big and two small knife injuries on his stomach. In para 9 of his cross-examination he has further stated that when he arrived at Police Station the injured

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Patna High Court CR. APP (SJ) No.731 of 2015 dt.12-09-2017

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was in sense. P.W. 2 (Rojid Ansari) has stated in para 7 and 19 of his cross-examination that he arrived at the place of occurrence three minutes later to the hulla. When he arrived 10-12 persons were present there from before and P.W. 3 (Khaitun Khatun) has stated in para-1 of her examination in chief that at the time of occurrence she was at her home. Listening hulla she rushed to the road by that time people had rushed her husband to Kateya hospital. Rojeed Ansari rushed him to the hospital on motorcycle. Thus from perusal of the testimony of P.Ws.-1, 2 and 3, it appears that the aforesaid witnesses are hearsay witnesses as they had arrived at the place of occurrence after sustaining injuries by the informant responding halla made by him. Though P.W.-4 Nasiruddin Ansari has claimed himself to be the eye-witness of the occurrence in his Examination-in-Chief by stating that responding halla , when he arrived near the graveyard, he witnessed Naseer Ali assaulted Ali Mohammad by means of knife but in paragaraph-9 and 10 of is cross-examination, he has stated that when he arrived at the place of occurrence, Rojeed Ansari, Krishna Murari Pathak and others had arrived there by that time and injured had fallen there. Thus the aforesaid statement of the P.W.-4 rules him out to be the eye-witness of the occurrence.

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As per the prosecution case when the informant arrived at the place of occurrence, the appellant intercepted him and gave

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Patna High Court CR. APP (SJ) No.731 of 2015 dt.12-09-2017

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three knife blows on his abdomen. But the informant in para-1 of his Examination-in-Chief, has sated that after intercepting him Naseer Ali, clamoured lift on his bicycle and when he alighted from the cycle he assaulted him by means of knife.

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Informant happens to be solitary eye witness of the occurrence and highly interested witness. His testimony regarding injuries sustained by him does not stand corroborated by medical evidence and his contradictory testimony is also not corroborated by other witnesses. Hence his testimony does not appear to be trustworthy, worth credence and reliable.

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In view of the aforesaid contradiction between the prosecution case and testimonies of the witnesses, no proof of source of identification, not finding of any blood at the place of occurrence, non-seizure of the blood stained attire and gamchacha by the I.O. and in view of the aforesaid contradiction between the ocular and medical evidence regarding the injuries sustained by the informant at the hand of the appellant the prosecution case does not appear to be convincing and reliable and does not inspire my confidence to hold conviction of the appellant relying on the same.

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In view of the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellant

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Patna High Court CR. APP (SJ) No.731 of 2015 dt.12-09-2017

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beyond all reasonable doubts by adducing convincing, cogent, consistent and worth credence ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned lower court is set aside and the appellant is acquitted from all the charges levelled against him. As the appellant is in custody, he is directed to be released forthwith from the custody, if not wanted in any other case.

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Accordingly, this appeal is allowed.

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(Prakash Chandra Jaiswal, J)

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S.Sb/-

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AFR/NAFR AFR CAV DATE Uploading Date 22.09.2017 Transmission 22.09.2017 Date

Naseer Ali @ Naseer Ahmad v. The State Of Bihar

Case brief

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Naseer Ali @ Naseer Ahmad v. The State Of Bihar

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