High Court Patna High Court

Md. Kasim @ Bhuttu vs State Of Bihar on 4 March, 2009

Patna High Court
Md. Kasim @ Bhuttu vs State Of Bihar on 4 March, 2009
Author: Kishore Kumar Mandal
                           CRIMINAL APPEAL No.7 OF 1998
                                          With
                          CRIMINAL APPEAL NO.10 OF 1998
                                           ---

Against the judgment and order of conviction dated
24.11.1997 and 28.11.1997,respectively passed by Sri
H.B.P.Sinha, 4th Addl. Sessions Judge, Madhubani in
Sessions Trial No.182/95.

—–

MD. KASIM @ BHUTTU, son of Abdul Rajaque,
resident of village Rajaura, p.s.Raiyam, Darbhanga
(Appellant in Cr. Appeal No.7/98)

MD. NABIJAN @ SUKHARA, son of Late Md.Hussan Tahir
resident of village Balath, P.S.Rahika, Madhubani
(Appellant in Cr. Appeal No.10/98)

Versus
S TATE OF BIHAR
(Respondent in both the case)

—–

For the Appellant :Ms.Rina Sinha, Amicus curiae
(Cr.Appeal No.7/98)
For the Appellant :Mr.Nirmal Kumar Sinha No.3
( Cr.Appeal No.10/98)
For the State :Mr.S.N.Prasad, APP
(in both cases)

—-

PRESENT

THE HON’BLE MR. JUSTICE KISHORE KUMAR MANDAL
***

K. K. Mandal, J. Both the appeals are cognate as they arise out of the

judgment dated order 24.11.1997 and order of conviction dated

28.11.1997, passed by the 4th Addl. Sessions Judge, Madhubani in

Sessions Trial No.182/95. Both the appeals, therefore, have been

heard together and are being disposed of by the present order.

2. Challenge in these appeals has been thrown to the

judgment dated 24.11.1997 and order of conviction dated
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28.11.1997, whereby both the appellants, namely, Md.Kasim @

Bhuttu (Cr. Appeal No.7/98) and Md.Nabijan @ Sukhara (Cr.

Appeal No.10/98) have been held guilty under the charge(s)

punishable under section 395 IPC and sentenced to undergo R.I.

for seven years.

3. Background facts, in a nutshell, are as follows:

The present appeals germinate out of Madhubani

(Rahika P.S.Case No.79/95), lodged by the informant Md.Zakir

Hussain(P.W.4) on 25.4.1995 at 1.15 P.M. alleging therein that

he along with his son Helal Akhtar (P.W.1) was returning to their

home on 24.4.1995 at 7 P.M from Darbhanga and as soon as

they reached near east of Basauli Hat on foot after deboarding

from a bus, all of a sudden, eight miscreants surrounded

them(some of them were armed with Lathi and sickle). As per the

prosecution case, they all assaulted the informant with Lathi and

sickle causing bleeding injury and forcibly snatched cash of

Rs.1500/- and a Seiko wrist watch from the possession of the

informant (P.W.4). The miscreants also relieved the informant’s

son (Helal Akhtar) of Rs.2300/- besides a Kohinoor wrist watch he

was wearing. As the occurrence was being committed, they raised

alarm, whereupon the villagers arrived, offered chase and caught

hold of them(the present appellants). The matter was promptly

reported to the police on 25.4.1995 at 1.15 P.M. by the informant

and the miscreants so captivated were handed over to the police.

4. On the basis of the said Fardbayan(Ext.3) a formal
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FIR(Ext.4) was drawn up. The Investigating Officer thereafter

investigated the case and having found the case true, submitted

charge-sheet against the present appellants whereon cognizance of

the offence was taken and the case was committed to the Court of

Sessions. The trial was ultimately taken up by the learned 4 th Addl.

Sessions judge, Madhubani in which charge under section 395 IPC

was framed against both the appellants and read over to them to

which they pleaded not guilty and, thus, claimed to be tried.

5. Defence of the appellants appears to be false

implication.

6. In order to prove the charge(s), the prosecution

examined altogether four witnesses, besides the court witness Md.

Nyaz (CW1) who has proved the Fardbayan (Ext.3) and formal

FIR (Ext.4)

P.W.1 Md. Helal Akhtar is the son of the informant

who, at the relevant date and time, was accompanying the

informant on their way home after deboarding a bus. As per his

deposition, as they reached near Kauwahi Tola, one miscreant

riding a cycle crossed them and immediately thereafter eight

miscreants, including the appellants, intercepted them. Four of

them caught hold of him, whereas four others caught hold of the

informant. They inflicted injury to both of them with sickle(used

for toddy tapping). He sustained injury on his head. The

miscreants robbed him of cash worth Rs.2300 as also an HMT

Kohinoor wrist watch he was wearing. The miscreants also
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looted Rs.1500/- and one Seiko wrist watch from the possession of

his father (P.W.4). On alarm raised by them, several villagers

came to the place of occurrence who offered a chase and

thereafter captivated the present two appellants.

P.W.2 is a formal witness who has proved his signature

on the seizure memo (Ext.1), whereby sickle, blood-stained cloths

and Darkas (a weapon used for toddy tapping) were recovered

from the possession of one of the appellants, namely, Md. Nabijan

@ Sukhara.

P.W.3 Faruque Ahmad is a co-villager who is said to

have arrived at the place of occurrence on hearing alarm raised by

the informant(P.W.4) and his son(P.W.1) just to find that the

villagers had captivated two miscreants. He found the informant

and his son in injured conditions who were thereafter shifted to

the hospital for treatment.

P.W.4 is the informant himself who, in his deposition,

has supported the prosecution case in its entirety. I have carefully

perused the evidence. In cross-examination nothing substantial

has come out in order to doubt and/or disbelieve/discredit his

deposition.

7. Learned amicus curiae appearing in Cr.Appeal

No.7/98, has criticized the judgment on the sole ground that no

independent witness has supported the prosecution case. She

further submitted that the Investigating Officer as well as the

doctor has not been examined in the case. Their deposition,
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according her, was necessary in order to prove the prosecution

case beyond all reasonable doubts.

8. Mr. Nirmal Kumar Sinha, learned counsel

appearing on behalf of the appellant in Cr.Appeal No.10/98 also

advanced somewhat identical submissions. He also addressed the

Court on the quantum of sentence.

9. Mr. S.N. Prasad, learned APP, per contra,

submitted that the prosecution has been able to prove their case

beyond all reasonable doubts. He further highlighted that the

accused(s) appellants have, in fact, miserably failed to adduce any

evidence and/or elicit any statement by way of cross-examination

in order to demonstrate, even remotely, that witnesses in general

and P.Ws.1 and 4 in particular had any animosity with the

appellants and, therefore, they have no reason to falsely implicate

the appellants. He further submitted that P.W.3 is an independent

witness who has supported the factum of the occurrence.

10. This Court thoughtfully reflected over the rival

submissions advanced on behalf of the parties and carefully

perused the evidence on record

11. The depositions of P.Ws.1 and 4 are clear and

specific. They have supported the prosecution case in their

entirety. The appellants have cross-examined the witnesses but

have not been able to elicit anything which can reasonably

discredit their deposition/evidence. P.W.3 is yet another

independent witness who has supported the factum of occurrence
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and, thus, corroborated the case projected by the prosecution

through the deposition(s) of P.Ws.1 and 4. This Court further

finds that these appellants have not been convicted under section

397 IPC and as such non-examination of the doctor has not, in

any manner, prejudiced the defence. This view has been taken

keeping in view the deposition of P.W.3 who did find P.Ws.1 and

4 in injured conditions and thus supported the manner of

occurrence as alleged by the prosecution. Non-examination of the

I.O. cannot ipso facto be said to be fatal to the prosecution case.

It always depends on the facts and circumstances of the case. I, on

perusal of the deposition of P.Ws.1,3 and 4, find that non-

examination of the I.O. has not prejudiced the case of the defence.

To repeat, this Court has found the evidence of P.Ws. 1 and 4

above-board, particularly when the appellants have not been able

to bring on record either by filing documents and/or by cross-

examining those witnesses showing any motive/purpose for false

implication of the present appellants. The submissions are,

therefore, unfounded and are hereby rejected.

12. Learned counsel for the appellants, thereafter

submitted that there are several factors emanating from the records

which have mitigating effects so far as the quantum of sentence

is concerned. It has been submitted that the occurrence in the

present case had taken place on 24.4.1995. It has further been

submitted that the appellants have been made to suffer in fighting

the present litigation for nearly 14 years by now. It is also
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highlighted that they have now grown up and presently are aged

about 69 and 46 years respectively and tethered to their families.

13. Counsel for the State, on the other hand,

submitted that the appellants have been held guilty of having

committed heinous crime and as such the Court should no take

lenient view.

14. Having considered the submissions advanced

on this aspect of the matter carefully, this Court is of the view that

the following sentence shall meet the ends of justice.

1. The appellants in both the

appeals (Cr.Appeal No.7/98 and Cr.Appeal

No.10/98) are sentenced to undergo R.I. for

six years for the charge(s) punishable u/s

395 IPC.

15. In the result, both the appeals stand dismissed

with the modification in sentence, as noticed above.

( Kishore K. Mandal )

Patna High Court,
Dated the 4th March,2009
HR/NAFR