Cr. Appeal (D.B) No. 186 of 1995 (P)
(Against the judgment of conviction dated 28.06.1995 and order of
sentence dated 30.06.1995 passed by 3rd Additional Sessions Judge,
Deoghar in Sessions Trial No. 41 of 1993)
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1. Khalil Mian s/o Khusru Mian
2. Tabul Mian s/o Afzal Mian
3. Charka Mian s/o Afzal Mian
4. Abdul Mian s/o Sukar Mian
5. Idris Mian s/o Haki Mian
6. Habib Mian s/o Sulaman Mian
7. Rafique Mian s/o Suleman Mian
8. Chuttu Mian @ Chutra Mian s/o Suleman Mian
9. Babu Mian s/o Suleman Mian
10. Nema Mian s/o Suleman Mian
11. Feku Mian s/o Sanu Mian
12. Aabid Mian s/o S.Mian
……Appellants
Versus
The State of Bihar ( Now Jharkhand) ...Respondent
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CORAM:
Hon’ble Mr. Justice Rongon Mukhopadhyay
Ho
n’ble Mr. Justice Deepak Roshan
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For the Appellant : Mr. Jitendra S. Singh, Advocate
Mr. Sudhansu Kumar Deo, Advocate
For the State : Mr. Pankaj Kumar, P.P
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C.A.V ON 24.06.2024 PRONOUNCED ON 31 /08/2024
Per Deepak Roshan, J. The instant appeal is directed against the
judgment of conviction and order of sentence dated 28.06.1995 &
30.06.1995, respectively, passed by 3rd Additional Sessions
Judge, Deoghar in Sessions Trial No. 41 of 1993; whereby the
appellants have been convicted for the offence under Sections
302/149 & 147. The appellant Charka Mian @ Rajauddin Mian
has been further convicted under Sections 148 and 307. All of
them have been sentenced to life imprisonment. However, no
separate sentence has been awarded under Section 147,148 and
307 of I.P.C
2. The prosecution case as per the F.I.R is that the
fardbeyan of the informant namely Hakim Miyan (P.W.- 5)
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recorded on 07.11.1992 at 16:30 hours at Referral Hospital,
Madhupur and as per the said fardbeyan there was a well
belonging to the injured Guljar Mian at village Chetnari. It is
further alleged that the said well situated in front of the house of
the injured Guljar Mian and just at a distance of about 30 to 40
hands from the house of the accused Khalil Mian.
It is further stated that on 07.11.1992 at about 8 a.m,
Guljar Mian (P.W. 3) was irrigating his potato field. In the mean-
time, the accused Khalil Mian reached there and told him that he
would irrigate his own potato field first upon which Guljur Mian
did not agree and replied that he was irrigating his potato field
and thus he would continue to irrigate the same. Thereafter
some heated exchange of words took place between Khalil Mian
and Guljar Mian and in the meantime Khalil Mian raised alarm
and called the named accused persons upon which the accused
persons came there with deadly weapon.
It is further alleged that Charka Mian attacked on the
head of Guljar Mian with farsa due to which he sustained cut-
bleeding injury on his head. It is further alleged that Kamruddin
Mian immediately rushed to rescue the said Guljar Mian but the
accused Kudus Mian gave a heavy lathi blow on his neck due to
which he fell down on the ground and thereafter on the
instigation of accused Habib Mian he gave repeated lathi blows
on the head, leg and neck of Kamruduin Mian when he was lying
on the ground in injured condition. Thereafter the informant
Hakim Mian rushed there to help him upon which the accused
Rafique Mian caused Lathi blow on his nose as a result of which
the blood started coming out of the nose of Hakim Mian.
Jamunia Mian and Riaj Mian also sustained injuries there. The
accused Nema Mian assaulted with Lathi on the head and back
of Riajuduin Mian as a result of which he sustained bleeding
injuries. Juman Mian also sustained injury on his leg caused by
the accused Khalil Mian. Thereafter, alarm was raised, the
witnesses named in the fardbeyan (Ext.6) reached there and
witnessed the entire occurrence. After assaulting them about 6
to 7 accused persons entered into the house of the accused
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Khalil Mian which was situating at a distance of 30 to 40 hands
from the place of occurrence and the remaining accused persons
fled away and all the injured persons were taken to Referal
Hospital, Madhupur where one of the injured persons, namely,
Kamruddin Mian died during course of the treatment.
3. Thereafter, an F.I.R was drawn up and the case was
investigated and on completion of the investigation the charge-
sheet was submitted, on the basis of which the learned Chief
Judicial Magistrate, Deoghar took cognizance and the case was
committed to the Court of Sessions for trial. The appellants
pleaded not guilty and claimed to be tried.
4. The prosecution in order to bring home the charges
examined altogether 11 witnesses apart from several documents
exhibited by both the parties.
The defence has also examined 5 witnesses and have
also got some document exhibited.
P.W-1 is Riajuddin Mian (injured witness). In cross
examination at Para-5, he admitted that Khalil Mian has also
registered a case against 18 persons including him. As per this
witness at Para-6 Ibrahim is not an eye witness; though as per
F.I.R. Ibrahim is eye witness. This witness also stated new facts
at Paras-9 and 10.
P.W-2 is Jumman Mian (injured witness). This witness
also admitted that there was hot conversation/altercation
between the Guljan Mian and Khalil Mian; hence no case is
made out under Section 149 I.P.C. In cross examination at Para-
5, he deposed that for the same occurrence accused Khalil has
lodged case against 18 persons. He stated in Para-6 that the case
was lodged by Khalil against 18 accused is from the same
ancestor. He cannot say the genealogical table of accused
persons and they are relatives/ brothers. He did not know in
which name the land was mutated and their homes are at the
same place.
P.W-3 is Guljar Mian (injured witness). In cross
examination, he deposed at Para 6 that in relation to the instant
occurrence, Khalil lodged a case against 19 accused including
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the present witness. We are from the same forefather. Khalil,
Azad, Abid, Khudus, Riajuddin and others were not sustained
any injury and all accused persons not belong to same family.
Only Habib, Rafique, Babu, Nemo, Chutur were belonging to
same family and they are residing near said well about distance
of 100 Gaj. They are sons of Suleman and rests accused persons
are ancestor of Karmali. Their lands and Parcha are different.
There is no land of Habib near the said well. He stated in Para-7
that it is not true that there is land dispute regarding the
Draupadi between both parties; but the dispute is regarding the
land of Imambara for which case is going on. At the time of
occurrence, 16 persons were assembled there on behalf of this
witness and 12-14 persons were assembled on behalf of accused
persons. There was no previous enmity between them. All of a
sudden, altercation took place and bricks and stones were
pelted, but I am not sure that how many persons were pelting
bricks and whose bricks sustained to whom; hence no case is
made out under Section 149 of 1.P.C.
P.W-4 is Madan Mohan Yadav (Advocate Clerk) -
Formal witness who identify the handwriting and signature of Sri
M.P. Yadav (PW-11), Officer-in-Charge, Karon police station. In
cross examination at Para-2, he admitted that he had not worked
with Officer-in-Charge and FIR has not been written in his
presence and he has no knowledge about the case.
P.W -6 is Tekan Mian @ Teku Mian (Tender witness).
P.W-5 is Hakim Mian (Informant- Injured witness) -
This witness also admitted that there was hot
conversation/altercation between both of them and in cross
examination at Para-4, he also stated that the accused namely
Khalil lodged a case regarding the assault against 18 persons
including this witness in which this witness along with other
witnesses were made accused. There was no injury on the body
of Abid Mian, Khudus, Khalil, Azad and Riajuddin. After given
Fardbeyan, treatment was started at about 4-4:30 to 5:00 P.M.
and in Para -7 he also deposed that the counter case filed by
Khalil in which all accused persons belongs to the one family and
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accused persons belongs to three families and there were no land
near the well and only the land of Sukar and Khudus is near the
said well.
P.W-8 is Ibrahim Mian. He is witness of inquest
report. In cross examination at Para 2, he has admitted that in
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the same occurrence Khalil Mian lodged a case against 18
persons in which I am also accused and Hakim Mian (PW-5)
informant is my cousin brother. He signed after one day of the
occurrence. Prior to the post-mortem he signed at about 07:00
A.M. morning.
P.W-9 Md. Ishaque - He is also a witness of inquest
report. In cross examination at Para-2, he deposed that the
informant is my uncle and Khalil Mian lodged a case in which
my uncle was made accused.
PW-11 Maheshwar Prasad Yadav (Investigating
Officer). In cross examination at Para -5, he deposed that he did
not find the mark of blood at the place of occurrence, and also
not seized the bricks and stones at the place of occurrence. He
did not prepare map, of the place of occurrence. He did not find
the Plot No. of the place of occurrence and also not verify the
land of plot No. of the boundary at the place of occurrence. He
could not say the plot No. of the place of occurrence. In para-6
he stated that he found the injury of the accused Khudus @
Khudus Mian, Charka Mian @Izaul Mian, Tako Mian @ Tabul
Mian, Abdul Mian, Khalil Mian, Javed Mian, Idris Mian and he
also taken separate statement and they were already examined
by the Doctor. In Para -7 he told that Tekar Mian told him that I
heard the son of Feku Mian, Afzal Mian, and Hanif and Hakim;
all were quarrelling and assault was going on. In Para - 11 he
further deposed that Guljar has not taken the name of all the
accused persons and he gave the name of only 8 accused
persons, and also said during course of quarrel he did not saw
all the accused persons. The dispute between the parties
regarding the Imambara and the land of Karbala and he has also
not seized the blood stains clothes, and they have assaulted to
each other and both parties were injured.
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In the Cross Examination dated 05.09.1994 on recall
by Defence; at Para-4 he stated that he was also Investigation
Officer of Karon P.S. Case No. 102/1992 (Exhibit-A and Exhibit
B). The Khalil Mian gave a Fardbeyan on 07.11.1992 which was
registered and I was investigate the case and submitted charge
sheet and the place of occurrence was same in the both cases
and he found bricks and stones thrown, and also found that the
bricks and stones thrown near the house of informant, and
charge sheet submitted under Sections
147/148/149/323/324/342/427 of 1.P.C. .
5. Learned counsel for the appellants has made the
following submissions:
(i) There is a delay in lodging the F.I.R., the
occurrence took place at 08:00 A.M. on 07.11.1992,
but the Fardbeyan of informant (PW-5) was recorded
at 16:30 hours on 07.11.1992
(ii) There are no independent witnesses examined by
the prosecution, all are interested witnesses.
iii) There was a case and counter case between the
parties. In same occurrence, the informant registered
an F.I.R. as Karon P.S. Case No. 101/1992 dated
17.11.1992 and the accused Khalil Mian registered an
F.I.R. as Karon P.S. Case No. 102/1992 dated
07.11.1992.
(iv) There was a free fight between the parties in same
occurrence; hence Section 149 of I.P.C. is not
applicable.
(v) The accused side also sustained injuries namely
Khalil, Khudus and Riyazuddin, Abid Mian, Azad
(Right of private defence of the property).
(vi) The I.O. did not found any blood stain at place of
occurrence.
(vii) It was a case of free fight between the both parties
and Section 149 of the I.P.C. is not applicable in the
facts and circumstance of the case as held by the
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Apex Court in the case of Kanwarlal & another Vrs.
State of M.P. reported in 2002 (7) SCC 152.
(ix) There is also a right of private defence of property
in which the Apex Court has laid down the
Hon’ble
law in the case of Subramani & others Vrs. State of
T.N. at 2002(7) SCC 210 & Kashiram & others Vs.
State of M.P. (2002) 1 SCC 71.
Apart from the aforesaid arguments and the rulings of
reference to the
the Hon’ble Apex Court, Mr. Singh also made
case of Kanwarlal and another Vs. State of M.P. reported in
(2002) 7 SCC 152
, wherein the Hon’ble Apex Court has held in
paragraphs no. 7 as under:
7.
“ The High Court has also noticed that PWs 1, 7
and 16 also received injuries in the incident.
However, there was no specific evidence as to which
of the accused caused these injuries; it is admitted
by the witnesses that the stones were pelted from
both the sides and injuries to these persons were
caused by pelting of stones; it appears that there
was some kind of free fight on the spot between the
two parties; so unless it was shown that a particular
accused caused these injuries, no one can be held
responsible by taking recourse to Section 149 IPC.
6. Relying upon the aforesaid grounds Mr. Singh
contended that the appellants should be acquitted from the
charges as the allegation was against one Md. Khalil Mian, who
has now expired and an affidavit to that effect has been filed by
Investigating Officer; hence his case may be abated.
Accordingly, the case of the appellant, Md. Khalil Mian
has been abated.
At this stage, it is relevant to indicate that appellant
no. 10, Nema Mian has already died; hence his case has been
abated vide order dated 21.08.2023.
7. Learned counsel for the appellants has made an
alternative argument that looking to the allegation and the
deposition of the prosecutrix and other P.W.s, in no case it can
be said to be an offence under Section 302/149 & 147; as such,
conviction under section 302/149 & 147 is bad in law. Even
otherwise, punishment for life is a very severe punishment and it
is evident that the appellants, Tabul Mian, Abdul Mian and
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Indris Mian have remained in custody for about 3 months 20
days; appellant, Charka Mian has remained in custody for 4
months 19 days, the appellants, Habib Mian and Rafiq Mian
have remained in custody for 3 months 14 days, the appellants
Chuttu Mian @ Chutra Mian, Babu Mian, Nema Mian, Feku
Mian have remained in custody for 2 months 15 days and Aabid
Mian has remained in custody for 3 months 20 days.
Accordingly, the conviction of the appellants may be modified
from Section 302/149 & 147 and conviction under Section 307
& 148 to Section 323/324 of I.P.C. and the sentence may be
modified for the period already undergone.
8. Learned P.P has opposed the prayer for acquittal and
submits that the learned trial court has not committed any error
whatsoever in convicting the appellants; as such no interference
is required.
9. Having heard learned counsel for the parties and after
going through the Lower Court Record, at the outset it is
indicated that the conviction of the appellants has been done
under section 302 with the aid of section 149 & 147 of the Indian
Penal Code.
The doctor Vishwanath Das who has been examined
as D.W.3 has proved the injuries sustained by accused Khalil
Mian, Khudush Mian, Riajuddin Mian, Azad Mian which suggest
that it is a case of free fight between both sides.
However, the prosecution has not explained the
injuries sustained by the accused persons and therefore the true
picture of the manner of the occurrence has not been brought
before the trial court and hence the prosecution has concealed
the material fact.
The prosecution has not been able to bring on record
any evidence to suggest that the accused persons were sharing
common object since the occurrence has taken place in a spur of
movement therefore the conviction with the aid of section 149 of
the Indian Penal Code is not sustainable.
The allegation of assault upon the deceased is
attributed to Kudus Mian who has already died during pendency
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of appeal and the prosecution has miserably failed to prove that
all the accused persons were sharing common object to commit
murder of the deceased.
Further, the prosecution has also not proved as to
who were the aggressor since the accused persons have also
sustained grievous injury on the vital part of their body and
therefore the accused persons have their right to private defence.
10. Admittedly, there is no independent witness
examined in the instant case and all P.Ws. are the interested
witnesses. It is also an admitted fact that there is a case and
counter case between the parties in the same occurrence;
inasmuch as, the informant registered F.I.R as Karon P.S. Case
No. 101 of 1992 dated 17.11.1992 and accused Khalil Mian (now
deceased) registered F.I.R as Karon P.S. Case No. 102 of 1992
dated 17.11.1992; thus we are having no hesitation in holding
that there was a free fight between the parties in the same
occurrence. Accordingly, Section 149 I.P.C is not applicable.
Moreover, admittedly the accused side also sustained injury.
11. As we have stated hereinbefore that there was a free
fight and there was no common intention of pre-meditation of
mind and there is no specific evidence as to which of the accused
caused these injuries and there is evidence of free fight on the
spot between the two parties, no one can be held responsible by
taking recourse to Section 149 of I.P.C
12. Looking to the overall facts and circumstances of the
case, it is clear that since there was no common object as held
hereinabove, the appellants are acquitted from the charge under
Section 302 I.P.C; however at the same time their presence and
fight cannot be ignored and thus they are liable to be convicted
under Section 323 I.P.C instead of Section 302 I.P.C and so far
as appellant no. 3 is concerned, conviction under Section 148
I.P.C is also set aside and so far as conviction under Section 307
I.P.C is concerned that he caused hurt by using back side of
Farsa, which cannot be considered that the act was committed
with the intention to cause death; as such his conviction under
Section 307 is converted to Section 324 I.P.C.
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It appears from the records, all the appellants have
remained in custody for about 3-5 months respectively; as such
they are sentenced for the offence under section 323/324 IPC for
period already undergone.
This appeal is disposed of.
Let the LCR be sent to the court concerned.
(Rongon Mukhopadhyay, J.)
(Deepak Roshan, J.)
Jharkhand High Court
Dated 31 /08/ 2024
jk/AFR
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