Patna High CourtBitan Mian & Ors vs State Of Bihar on 31 March, 2011Author:Dharnidhar JhaBench:Dharnidhar JhaCriminal Appeal (SJ) No.105 of 1993

                    Against the judgment of conviction and
                    order of sentence dated 18th day of
                    March, 1993 and 20th day of March, 1993
                    passed by 3rd Additional Sessions Judge,
                    Rohtas,   Sasaram   in  Sessions   Trial
                    No.58/33 of 1985/88.


                    1. SHER MOHAMMAD @ SHER MOHAMMAD MIAN,
                    SON OF SATTAR MIAN,
                    2. SATTAR MIAN, SON OF NIJAN MIAN @
                    MIYAJAN MIAN,
                    BOTH   RESIDENTS    OF    VILLAGE-TENDUNI,
                    POLICE STATION-     BIKRAMGANJ, DISTRICT-
                    ROHTAS.-----------------------Appellants
                                           Versus
                    STATE OF BIHAR----------------Respondent
                                         --------

                     For the appellants:- S/Sri Ashok Kumar Mishra,
                         Varun Kumar and Md.    Rais, Advocates.
                       For the State:-       Sri S.N.Prasad,A.P.P.

                                  P R E S E N T

              THE HON'BLE SRI JUSTICE DHARNIDHAR JHA


Dharnidhar Jha,J.              This   appeal        was    preferred     originally         by

                    four     appellants        to    challenge       judgement            dated

                    18.03.1993passed     by    Additional        Sessions       Judge,

                    Rohtas    in    Sessions    Trial       No.58/33    of   1985/88        by

                    which    the    appellants       had     been    found     guilty       of

                    committing offences underSections 304/34and323IPC     and    each   of    them      was   directed       to     suffer

                    rigorous       imprisonment       for    seven     years        and    six

                    months respectively on the two counts. During the2pendency of the appeal, appellants Bitan Mian and

Gaffar Mian were reported dead and, as such, their

appeals abated as may appear from order passed on

13.05.2010 by this Court.2.     The prosecution case in short was that

the husband of the informant, namely, Noor Mohammad

Mian(P.W.4)came out of his house to urinate in the

night and on        seeing him, accused Gafar Mian and

Sattar Mian started abusing him and also accused

him of throwing stone over the roof of their house.

P.W.4 requested not          to abuse him as he had just

come out of his house to urinate and that he should

first    get   confirmed,    upon   which    all   the   accused

persons started assaulting him with lathi. Mohalla

people    came    to   intervene       in   the    assault    and

diffused the quarrel who ran away towards Tenduni

Chowk     and did not return in the night as a result

of which, the P.W.8 got anxious, As per her story

in the FIR, she went to inform her Dewar,                    Gazar

Mian,    who   came    and   started    enquiring     from    the

accused persons as to the reason for which they had3assaulted P.W.4. All the accused persons, thereupon

started   assaulting         the    deceased    Gazar      Mian    with

Chailas (split piece of wood) as a result of which

Gazar   Mian     fell   down       unconscious.      The    informant

(P.W.4)   attempted       to   intervene       but   she    was    also

assaulted and injured. The neighbouring people came

and saw the occurrence whereafter, the injured was

shifted to a doctor who referred him to                   P.M.C.H.3.      After      investigation      of    the    case    by

P.W.9, chargesheet was laid before the court for

trial which ended in conviction of the four accused

persons who had filed the appeal as noted earlier.4.     During the course of the trial, ten

witnesses were examined, out of whom P.Ws.2 and 3

were formal in nature, having proved the FIR and

the endorsement over the fardbeyan as Exts-1 and 3.

P.Ws.1 and 8 were the only eye witnesses whereas

P.W.7 Wakil Sharma was simply making                       an overall

statement        that an incident of           assault had taken

place   whereafter      he     went   to   sleep     at    his    shop.

P.Ws.5 and 6 were declared hostile. P.W.10 was the4doctor to whom the injured Gazar Mian was shifted

in an unconscious state of health. P.W.10 does not

state   in      his    evidence        that       he    found       any   injury

externally on the person of Gazar Mian. Gazar Mian

died    might be               true, but there was no evidence

before the trial court as to what was the reason to

cause death and where                  did he die and whether the

postmortem examination was performed on his dead

body or not.5.         As   a    result,       the      oral      testimony     of

P.W.1 in paragraph-7 of                     his cross-examination              in

which he has stated that when he came, he found

accused persons assaulting Gazar Mian with Chailas

and simultaneously the ladies of the house of the

accused      persons           were        indulged         in   brick-bating

appears      not      supposed         and       probabilized             by   the

evidence      of      P.W.10.         It    is    not       clear    from      the

evidence of any of the witnesses including P.W.8 as

to whose assault was the                         real cause of causing

unconsciousness of Gazar Mian. There is no specific

statement        coming         from        any        of    the     witnesses5specially P.Ws.1 and 8 as to who had dealt the blow

at which part of the body of Gazar Mian. Initially,

there was the story of assaulting Gazar Mian with

Chailas, but during the course of the trial the

story of giving blows with lathi was added which

improvement was never supported even by P.W.10.6.   In order to prove the charges underSection 304 IIPC the prosecution shall have to

prove that the accused persons did an act with an

intent that the injury which they were likely to

inflict    upon       the     deceased    was    so     imminently,

dangerously    that      in    all   probabilities       they   must

cause death or alternatively the prosecution has to

show that the accused persons were fully knowing

that the act, in which they were indulging into

were so dangerous that it in all probability may

cause death.7.      I    have     just     noted   down    that   the

evidence is indefinite, there is no specific story

of   assault   alleged         against    any    of   the   accused

persons including the two appellants. There is no6evidence coming from any doctor that Gazar Miyan

                    had any injury, least to talk of any injury which

                    was proving fatal subsequently.8.         In    that       view,      it    appears    simply

                    difficult to uphold the judgment of conviction as

                    was recorded by the learned trial Judge as in the

                    very   face    of   the    claim       of   the       prosecution     that

                    Gazar Mian was shifted to a hospital from where he

                    was shifted to P.M.C.H., it could safely be assumed

                    that there might have been some injuries on the

                    deceased but the non-production of the evidence in

                    that   behalf       create        a    serious         doubt     in    the

                    prosecution case.9.         In    that    view      of    the     matter,      the

                    judgment and order of sentence which were passed

                    against the two appellants could not be sustained.

                    The appeal is allowed. The appellants are acquitted

                    of the charges. They shall stand discharged from

                    the liabilities of their respective bail bonds.( Dharnidhar Jha,J.)
Patna High Court, Dated,
the 31st day of March,
2011, Brajesh Kumar/NAFR