Md. Abdul Kalam & Ors vs State Of Bihar on 30 July, 2012

Patna High Court

Author: Ashwani Kumar Singh

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.178 of 1999

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1. Md. Abdul Kalam, son of Late Wajid Ali,

2. Md. Hifizur @ Bauka, Son of Md. Abdul Kalam &

3. Md. Islam, son of Md. Abdul Kalam

All resident of village-Chhoti Ballia, P.S.Ballia, District-Begusarai. .... .... Appellants

Versus

The State Of Bihar

.... .... Respondent

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

For the Appellants : M/S Fauzia Shakil, Sajid Salim Khan, Shoeb Alam. Advocates

For the Respondent : Mr Ajay Mishra, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V. JUDGMENT

Date: 30-07-2012

By a judgment pronounced on 20.07.2009 in Sessions Trial No.52 of 1982 arising out of Balia P.S.Case No.11 of 1978, the learned Additional Sessions Judge-II, Begusarai found appellant no.1 Md. Abdul Kalam and appellant no.2 Md. Hifizur @ Bauka guilty under Section 307/34 of the Indian Penal Code. By the same judgment he found appellant no.3 guilty under Sections 307/34, 326 of the Indian Penal Code and Section 27 of the Arms Act. The learned Additional Sessions Judge-II by the order pronounced on 21.07.1999 sentenced appellant nos.1 and 2 to undergo rigorous imprisonment for six years under Section 307/34 of the Indian Penal Code and appellant no.3 to undergo rigorous imprisonment for ten years under Section 307/34 of the Indian Penal Code, rigorous imprisonment for six 2

years under Section 326 of the Indian Penal Code and rigorous imprisonment for seven years under Section 27 of the Arms Act. The sentences so awarded to the appellant no.3 have been ordered to run concurrently. The convicts being aggrieved by the aforesaid judgement and order passed by the trial court have preferred this appeal under Section 374(2) of the Code of Criminal Procedure.

2. The prosecution case, in brief, is that on 15.05.1978, the informant Mir Belal was ploughing his field and his elder brother Mir Allauddin was sitting near his field. Appellant no.1 Md. Abdul Kalam was also ploughing his field and his son, appellant no.2 Hifizur Rehman was ploughing adjacent field. At about 10 a.m. it is alleged that appellant no.1 Md. Abdul Kalam stopped ploughing, came and enquired from the informant as to why he had ploughed his land. The informant denied to have ploughed his field. They entered into a wordy duel. The informant further alleges that Md. Abdul Kalam and his son Hifizur Rehman started abusing him. A protest was raised by the informant upon which Md. Abdul Kalam asked his son Hifizur Rehman to go to the village and call Md. Khodadad and Islam with arms. Thereafter Hifizur Rahman came together with Khodadad and Islam. It is further alleged that Khodadad ordered to assault on which Islam took out his pistol and fired on the informant and his brother. The further allegation is that informant's 3

brother Allauddin sustained fire arm injury and he fell down. Thereafter, Md. Abdul Kalam and Hifizur Rehman assaulted the informant with lathi indiscriminately. On shouting made Md. Idris, Raghunath Dhobi, Khakho Mir and Gorakh Yadav came who intervened and pacified the quarrel between the parties.

3. On the basis of the fardbeyan of the informant, Balia P.S.Case No.11 dated 15.05.1978 was registered under Sections 323 and 324 of the Indian Penal Code and Section 25A and 26 of the Arms Act and investigation was taken up. The police on conclusion of investigation submitted chargesheet in the case. The learned Chief Judicial Magistrate, Begusarai took cognizance of the offence and committed the case to the court of Sessions for trial. The trial court framed the charge under Section 307 read with 34 of the Indian Penal Code against all the three appellants. Appellant no.3 Md. Islam was separately charged under Section 326 of the Indian Penal Code and Section 27 of the Arms Act. The appellants did not plead guilty and thus they were put on trial.

4. In course of trial, the prosecution has examined seven witnesses. Out of the seven witnesses examined on behalf of the prosecution, P.W.6 Sukehdeo Prasad Chaurasia and P.W.7 Sheo Shanker Choudhery are formal witnesses who have proved sanction order and the case diary which have been marked as Ext-3 and Ext-4 4

respectively. P.W.1 Gorakh Yadav and P.W.2 Raghunath Rajak are named in the FIR but they have not supported the prosecution case in course of trial and as such they have been declared hostile by the prosecution. P.W.3 Md. Rizwan and P.W.4 Md. Multan Khan are the other two witnesses on the point of occurrence. P.W.5 Dr. S.M.Waquar had examined the informant and his brother and issued injury reports. The informant Mir Belal and his brother Mir Allauddin have not been examined by the prosecution in course of trial. The investigating officer of the case has also not been examined during trial.

5. Apart from the witnesses examined on behalf of the prosecution one Dinesh Jha has been examined as a court witness who has proved carbon copy of the FIR which has been marked as Ext-1 with objection. On behalf of the defence, three witnesses, namely, D.W.1 Ramsharan Rajak, D.W.2 Mir Sah and D.W.3 Bhubneshwar Yadav have been examined. The defence has also brought some documents on record in support of their innocence.

6. As stated above, P.W.1 Gorakh Yadav and P.W.2 Raghunath Rajak are named in the FIR who came on alarm having been raised at the place of occurrence. These witnesses have not supported the prosecution case and they state in their examination-in- chief that they knew nothing about the occurrence. The prosecution 5

declared them hostile. These two witnesses are of no help to the prosecution.

7. On the point of occurrence, the prosecution has examined two other witnesses, namely, Md. Rizwan(P.W.3) and Md. Multan Khan(P.W.4). P.W.3 Md. Rizwan states in his examination-in- chief that he was acquainted with the informant and Allauddin. The occurrence took place about 18 years ago at about 9 a.m. He states that the appellants Md. Abdul Kalam and Md. Islam together with co- accused Khodadad came to the field of the informant where his brother Mir Allaududdin was also present and Mir Belal and Khodadad ordered upon which Md. Islam fired at Mir Allauddin. He further states that Md. Abdul Kalam and Hifizur Rehman assaulted the informant with lathi. According to him, after receiving the fire arm injury Mir Allauddin fell down. He was taken to Balia hospital. He further states that Mir Allauddin brought him to Begusarai where he swore an affidavit which has been proved by him and marked as Ext-

1. In cross-examination, he states that Khodadad had exhorted on which appellant no.3 Md. Islam fired on Mir Allauddin. He further states in cross-examination that appellant no.1 Md. Abdul Kalam and appellant no.2 Hifizur Rehman assaulted the informant Belal. His attention has been drawn towards his previous statement made before police. He admits in cross-examination that he is an illiterate person 6

and as such he cannot say regarding the contents of the affidavit as contained in Ext-1. He further states that the firing was made by Md. Islam(appellant no.3) by a country made pistol from a distance of about ten laghas. He also states that a cot was brought from the house of Mir Allauddin on which he was taken to hospital. The police came in the hospital where his statement was recorded

8. P.W.4 Md. Multan Khan states in his examination-in- chief that he knew the informant Mir Belal and his brother Mir Allauddin. They are his co-villagers. The occurrence took place 18 years ago at about 9 a.m. At that time he was engaged in getting his tree cut down at a distance of about 100 yards from the place of occurrence. He heard hullah and went there. He saw that Md. Abdul Kalam, Md. Islam, Khodadad and Hifizur Rehman were altercating with Mir Allauddin and Mir Belal. According to him also upon the order made by Khodadad appellant no.3 Md. Islam fired causing injury to Mir Allauddin. He further states that appellant no.2 Hifizur Rehman and appellant no.1 Md. Abdul Kalam assaulted the informant Md. Belal with lathi. On alarm being raised Khakho, Md. Rizwan, Md. Idris and others came at the place of occurrence. The injured were taken to Balia hospital. He further states that the disputed land was of the injured Mir Allauddin and the accused persons had no concern with that.

9. P.W.5 Dr. S.M.Waquar states in his examination-in- chief that he examined Mir Allauddin on 15.05.1978 at 12.30 p.m. At that time he was posted as Medical Officer, in Primary Health Centre, Balia, Begusarai. He found following injuries on his person:- (i)Multiple pillet injuries on the whole of epigastric and both the hypochondriac region and lower part of the chest with huge haemotoma and bleeding.

(ii)Profused bleeding from the mouth and nostril. According to the doctor both the injuries were grievous in nature caused by fire arm, such as, gun shot. On the same day, he had also examined the informant Mir Belal at 12.40 p.m. and found the following injuries on his person:-

(i) Fracture(compound) both the proximal phalanges of the left middle and ring finger.

(ii) Fracture(compound)of right ulna on its middle with huge swelling of fore-arm.

(iii) Lacerated wound with depressed fracture of the occipital bone of the head.

(iv) Swelling with haematoma 4"x3" on the middle of the left fore arm.

(v) Swelling with ecchymosis 6" x 4" on the left scapular region.

(vi) Swelling with haematoma 6"x4 1/2" on the back. (vii) Swelling with tenderness of the left foot. As per report injury nos.1 2 and 3 were grievous and rest of the injuries were simple in nature. In the opinion of the doctor the injuries were caused by hard and blunt substance.

10. In cross-examination the doctor(P.W.5) states that he did not find any charring around injury no.1 on the person of Mir Allauddin. He further admits that he did not find any apparent injury near mouth and nose of Mir Allauddin. He also admits that both the injuries found on the person of Mir Allauddin could have been caused by fire arm such as gun shot but not by pistol. He states that from pistol no pellet injury, like the injury found on the person of injured Mir Allauddin could be caused. He further admits that without any X- ray or radiological examination he had given the report that injury nos.1, 2 and 3 caused on the informant Mir Belal were grievous in nature. He further admits that injury nos.4, 5, 6 and 7 found on the person of the informant Mir Belal could have been cuased due to multiple fall.

11. Miss. Fauzia Shakil, learned counsel for the appellants, submits that the appellants have been falsely implicated in the present case by the informant Mir Belal and his brother Mir Allauddin. Neither the informant nor the injured were examined 9

during trial. The witnesses mentioned in the FIR and the chargesheet such as P.Ws.1 and 2 have not supported the prosecution case. The other witnesses who are named in the FIR, such as, Md. Idris and Khakho Miyan have not been examined by the prosecution during trial.

12. It is further submitted on behalf of the appellants that for the non-examination of the material witnesses no reasonable explanation has been given by the prosecution. She further submits that in relation to the manner of occurrence as stated in the fardbeyan of the informant, there are major contradictions in the evidence led by the prosecution witnesses vis-à-vis each other and also vis-à-vis in the FIR. As per the FIR, the appellant no.1 Md. Abdul Kalam stayed at the spot and instructed the appellant no.2 Md. Hifizur @ Bauka to call Md. Khodadad and Md. Islam with arms. This version has not been supported by the witnesses. P.W.3 while deposing in court states that he saw all the four accused persons including appellant no.1 Md. Abdul Kalam armed with lathi and pistol proceeding towards the place of occurrence. She further submits that as per the FIR, on being exhorted by Md. Khodadad, appellant no.3 Md. Islam took out pistol from his pocket but P.W.3, while deposing in court states that he saw appellant no.3 brandishing his pistol.

13. Learned counsel for the appellants further submits 10

that P.W.3 states in his deposition that he picked up the injured victim and carried him to hospital on the cot brought from the house of the injured, Mir Allauddin. However, in the fardbeyan, the informant states that he carried the injured Mir Allauddin from the spot to the police station where his statement was recorded.

14. Learned counsel for the appellants further submits that the medical report given by the doctor completely demolishes the prosecution case. P.W.5 Dr. S.M.Waquar, while deposing in court, clearly states that the injuries found on the person of Mir Allauddin could not have been caused by firing from pistol. He states that both the injuries on the body of Mir Allauddin were caused by fire arm such as gun but not by pistol because from pistol no pellet injury, like the injury found on the person of injured can be caused. Thus it is submitted that the medical evidence contradicts the use of pistol as stated in the FIR and in the testimony of the witnesses examined on behalf of the prosecution.

15. It has also been submitted on behalf of the appellants that P.Ws.3 and 4 are neither named in the FIR nor they are witnesses in the chargesheet submitted by the police. Even as per the fardbeyan, the alleged eye witnesses, named in the FIR, reached to the place of occurrence only after hearing shouting, hence, even they could not have witnessed the occurrence.

16. Having heard the parties, I find force in the submissions made on behalf the appellants. Apparently, the witnesses named in the FIR have either turned hostile or have not been examined on behalf of the prosecution. The witnesses who have supported the case on the point of occurrence are neither named in the FIR nor they are chargesheet witnesses. There is no explanation, whatsoever, on behalf of the prosecution as to why the investigating officer of the case has not been examined.

17. The FIR has not been properly proved in the case. After examination of prosecution witnesses, the trial court permitted a carbon copy of the F.I.R. to be proved by an advocate's clerk, namely, Dinesh Jha(C.W.1). In view of Section 60 of the Evidence Act, the prosecution is bound to lead the best evidence available to prove a certain fact. In the present case, Mr. S.Kujoor, S.I. Balia Police Station, who had written and drawn the F.I.R. was the best person to prove the F.I.R. The witness examined on behalf of the prosecution has not stated that the original and carbon copy of F.I.R. were prepared in the same process.

18. I further find that the trial court has permitted the case diary from Paragraph no.1 to 73 to be proved as Ext-4 by P.W.7 Sheo Shanker Choudhary, an advocate's clerk. In cross-examination P.W.7 admits that he does not know as to whether Mr. A.Kujoor, S.I. 12

Balia P.S., who has written the case diary is alive or dead. To exhibit a document means to produce a document as evidence in court. The statement of witnesses recorded under Section 161(3) of the Code of Criminal Procedure by police in course of investigation can in no circumstance be used as substantive evidence. It can be used only for the purposes of contradicting the prosecution witnesses under Section 145 of the Evidence Act. The trial court in its judgment accepts that the witness who has proved the carbon copy of the F.I.R. has not stated in his examination-in-chief that the original and carbon copy of the F.I.R were prepared in the same process. However, since entire case diary has been proved which also contains the contents of F.I.R. in para-1, the trial court, took a view that the same would not in any way effect the merit of the case. When the defence pointed out that P.W.3 and P.W.4 who are the material witnesses on the point of occurrence had not stated before the police in the statement recorded under Section 161 of the Code of Criminal Procedure in the manner they deposed in court, the trial court took a view that the F.I.R and statement recorded under Section 161 of the Code of Criminal Procedure are not encyclopedia to give each and every minute details which had come into light during deposition in the court. In my considered opinion the case diary can not be produced as evidence in court. The only use of the diary is "to aid" the court in trial. It is not a 13

substitute for evidence in the case for making a comparison with the testimonies of witnesses. The court can not use any portion of the case diary as evidence. If there are material contradictions in the statements of the prosecution witnesses, the accused are entitled to get the benefit of reasonable doubt. Sometimes, material omissions may amount to contradictions, if duly proved at trial. In the present case, the defence has drawn attention of P.W.3 and P.W.4 towards their statements made before police in course of investigation, when they were examined in court. The defence could have asked the Investigating Officer regarding those alleged contradictions or omissions but as noted above the Investigating Officer has not been examined by the prosecution. Under the circumstances mentioned above the defence has certainly been prejudiced due to non-examination of the I.O. The trial court ought to have considered this aspect of the matter

19. I further find that the doctor who examined Mir Allauddin is categorical in saying that the injuries found on his person could not have been caused by pistol as alleged in the FIR. The evidence of the eye witnesses that injuries were caused by pistol is not corroborated by medical evidence. The value of medical evidence is not merely a check upon the testimony of the eye witnesses; it is also an independent testimony, because it may establish certain facts quite apart from other oral evidence.

20. Under the circumstances mentioned above, the presence of P.Ws.3 and 4 at the place and time of occurrence becomes highly doubtful. I find from evidence of P.W.2 Raghunath Rajak that though the prosecution has declared him hostile, the defence cross-examined him in which he states that the informant Mir Belal, injured Mir Allauddin and witnesses to the F.I.R. Khakho and Idris are already dead. Thus, I find that there is at least some explanation for the non-examination of the informant, injured and witnesses named in the F.I.R. but only on that count the prosecution case can not succeed. It is for the prosecution to prove its case beyond reasonable doubt by adducing competent and reliable witnesses in course of trial.

21. However, I find that the witnesses examined on behalf of the prosecution are not consistent. The injury report given by the doctor in respect to the injured Mir Allauddin does not corroborate the story propounded in fardbeyan. The doctor in his deposition demolishes the prosecution case. P.W.4 in paragraph-1 and 6 of his deposition states that he came on hearing the hullah, which as per the FIR is after the gun shot, hence P.W.4 could not have been an eye witness to the occurrence. Again P.W.3 in para-7 of his deposition states that he did not see the gun shot and at that time he was at the thresher. Thus, no reliance can be placed on the 15

depositions of these two witnesses. The non-examination of the I.O. in the facts and circumstances of the case is fatal. The fardbeyan and F.I.R. have not been properly proved. There is no other evidence on record to hold the appellants guilty for the offence alleged.

22. From the discussions made and the reasons assigned, hereinabove, I am of the considered opinion that the prosecution has failed to prove its case beyond all reasonable doubt. In the result, the impugned judgment dated 20.07.1999 and order dated 21.07.1999 passed by learned Additional Sessions Judge-II, Begusarai in Sessions Trial No.52 of 1982 are set aside. The appeal is allowed. All the three appellants are on bail. They are discharged from the liabilities of their bail bonds.

(Ashwani Kumar Singh, J)

Patna High Court,

Dated, 30th July,

2012, Brajesh

Kumar/NAFR