CRIMINAL APPEAL No.7 OF 1998
With
CRIMINAL APPEAL NO.10 OF 1998
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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.
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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