Patna High Court
Islam Khan And Ors vs The State Of Bihar on 19 December, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.243 of 2013
Arising Out of PS. Case No.-48 Year-2002 Thana- BIRPUR District- Supaul
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1. Islam Khan and Ors S/O Late Abid Khan Resident Of Village- Kushhar Mal,
Police Station- Balua Bazar, District- Supaul
2. Soaib Khan S/O Islam Khan Resident Of Village- Kushhar Mal, Police
Station- Balua Bazar, District- Supaul
3. Masum Khan S/O Late Abul Khan Resident Of Village- Kushhar Mal,
Police Station- Balua Bazar, District- Supaul
4. Muslim Khan S/O Late Abul Khan Resident Of Village- Kushhar Mal,
Police Station- Balua Bazar, District- Supaul
5. Hussain Khan S/O Late Abul Khan Resident Of Village- Kushhar Mal,
Police Station- Balua Bazar, District- Supaul
6. Sheikh Imamul @ Niyamul S/O Sheikh Abid Resident Of Village- Kushhar
Mal, Police Station- Balua Bazar, District- Supaul
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Kumar Gautam, Advocate
: Mr. G.C. Jha, Advocate
: Mr. Ashish, Advocate
For the Respondent/s : Mr. Sujit Kr.Singh, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 19-12-2024
Heard Mr. D.K. Sinha, learned Senior Counsel
along with Mr. Kumar Gautam, Mr. G.C. Jha and Mr. Ashish,
learned advocates for the appellants and Mr. A.M.P. Mehta,
learned APP for the State.
2. The present appeal has been filed under
Section 374(2) of the Code of Criminal Procedure (hereinafter
referred to as Cr.P.C.) challenging the judgment of conviction
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and order of sentence dated 18.03.2013 passed in Sessions Trial
No. 24 of 2004 arising out of Balua Bazar P.S. Case No. 48 of
2002 by the learned Additional Sessions Judge-III, Supaul
convicting the appellants for the offence under Sections 147,
323, 324, 341, 504 and 307/149 of the Indian Penal Code and
one appellant namely Islam Khan has been convicted under
Section 148 of the Indian Penal Code also. The appellants have
been awarded punishment to undergo imprisonment for one year
under Section 147 of the Indian Penal Code, one year
imprisonment under Section 323 of the Indian Penal Code, two
years imprisonment under Section 324 of the Indian Penal Code,
one month imprisonment under Section 341 of the Indian Penal
Code, one year imprisonment under Section 504 of the Indian
Penal Code, five years rigorous imprisonment under Sections
307/149 of the Indian Penal Code and fine of Rs. 2000/ – has
been imposed on each of them. Appellant Islam Khan has been
awarded punishment to undergo imprisonment for two years
under Section 148 of the Indian Penal Code. All the awards have
been directed to run concurrently and in default of payment of
fine, the appellants are to undergo one-year simple
imprisonment.
3. The brief facts of the case as stated by the
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informant Quddush Khan in his written application are that
Islam Khan and his family members had a piece of land in
Mauja Kushhar within a Khata Khasra. His nephew Kamil also
has a land adjacent to the former mentioned land. Islam Khan
had repeatedly encroached the boundary between the two pieces
of land by cutting into his nephew’s land. The land was
measured several times and each time it turned out to be Kamil’s
land. Whenever the Amin was brought to measure the land,
Islam Khan would erase the marks behind his back. Islam Khan
kept doing this for three to four years following which Kamil
had to approach the local Mukhiya. The Mukhiya appointed
ward member Javi Ullah Khan to investigate the matter. Kamil
brought the Amin, but neither Islam Khan nor any member of
his family come despite being informed. The date was fixed
again but Islam Khan made an excuse and got away. Finally, the
Mukhiya fixed the time of Jumerat on 13.06.2002 when all the
people gathered together and sat with the Amin. But neither
Islam Khan nor any member of his family came till 1:30 PM
than everyone left the place. Thereafter, Kamil went to Islam
Khan’s house and expressed his concern that everyone had been
waiting for him and they left when he did not come. On hearing
this, Islam Khan in anger said “catch him and kill him and then
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he can keep taking the land.” Hearing this, Shoaib Khan,
Hashim Khan, Masoom Khan, Muslim Khan, Sheikh Niamul
and all the co-appellants in the instant case came with lathis and
farsas. Islam Khan asked his son to hand him the farsa so that
he would not let Kamil escape. Seeing this, Kamil ran on the
road and all of them gathered around him while Islam Khan
started hitting him with the farsa. This resulted in several cuts
on Kamil’s head at different places which led to bleeding from
his head. Other people also started hitting him with lathis
following which Kamil fell on the ground. By that time, people
from all sides came running which saved Kamil’s life. Niamul
took away the HMT gold watch worth Rs. 1500 from Kamil’s
hand. Hasim took away a heavy gold chain worth Rs. 6000 from
his neck. Maqil picked him up and brought him to the police
station. He was bleeding and become unconscious. This incident
happened around 2 PM in the afternoon.
4. On the basis of the written application of the
informant, the police station in-charge of Balua Bazar lodged a
formal FIR, and thereafter, the investigation officer investigated
the case and submitted a chargesheet against the accused. On the
basis of the charge-sheet, the sub-divisional Judicial Magistrate,
Birpur took cognizance of the case and transferred the case to
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the court of Judicial Magistrate Birpur for commitment and
from there the case was committed to the Court of the Sessions
Judge, Supaul. Thereafter, Sessions Judge Saharsa transferred it
to the court of Additional Sessions Judge, Supaul for trial and
disposal.
5. The prosecution examined altogether 7
witnesses in this to substantiate the charges against the accused
persons, out of them PW-1 Mahendra Rai, PW-2 Baldeo Rai,
PW-3 Samsul Khan, PW-4 (Injured) Md. Kamil Khan, PW-5
Abul Kalam, PW-6 Hazi Abul Kalam, PW-7 (Informant)
Quddush Khan. Further, it is pertinent to note that the Doctor
and Investigating Officer of the case was not examined during
the trial of the case.
6. PW-1 Mahendra Rai stated in his examination-
in-chief that the incident took place around four years prior at
around 1-1:30 PM. He was at his home when the incident took
place. When he reached the place of occurrence after hearing
noises, he saw that the injured Kamil Khan was being taken to
the hospital situated in Birpur on bike by Quddush Khan, Hira
and Nazim and he had a towel wrapped around his head. When
he asked what had happened, he was informed that Islam Khan
and his family members had beaten him with lathi in connection
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with a land dispute. PW-1 identified Islam Khan.
6.1 In his cross-examination, PW-1 stated that
the place of occurrence was 5-10 minutes away from his house
and that when he reached the place of occurrence, the incident
had already taken place. He stated that he did not know when
the incident was over and that he got to know about the incident
from the people present at the place of occurrence. He did not
know the names of the people who told him about the incident.
He was informed of the land dispute between the appellant and
the injured on that day itself, when he reached the place of
occurrence.
7. PW-2 Baldeo Rai stated in his examination-in-
chief that he was at his home at the time of the incident. He
reached the place of incident on hearing the noise and when he
reached near Islam Khan’s house, he saw that Kamil Khan was
lying down on the ground with his head bruised. On asking the
people nearby, he got to know that Islam Khan had beaten
Kamil in connection with a land dispute. Samsul was speaking
as Imamul Khan. Apart from this, he did not tell anything. The
police had recorded his statement. PW-2 was declared hostile
because he told police that he had seen that scuffling had taken
place.
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7.1 In Paras 3 and 4 of the cross-examination
PW-2 said that his house is 1-1.5 bigha away from the place of
occurrence. He had heard about the incident from the people
there. There were about fifty people at the place of incident. He
was there at the place of occurrence for about an hour.
8. PW- 3 Samsul Khan stated in his examination-
in-chief that the incident took place on 13.6.2002. He was
returning after offering Namaaz when he saw Kamil running
from Islam Khan’s door. Islam Khan, Shoaib Khan, Hashim
Khan, Masamu Khan were chasing him and that Islam Khan had
a farsa in his hand from which he hit Kamil. Kamil fell down
after receiving a farsa blow on his head. The other accused then
beat him up which resulted in bleeding from all over his body.
Following this the villagers came and then Hira, Nazim took
Kamil to the Balua Bazar hospital on a motor-cycle. From there
they took him to Birpur hospital. He said that he was told by the
people that the date for measuring the land had been fixed and
Kamil had gone to inform Islam about the same, following
which the incident occurred.
8.1 In his cross-examination, he clearly stated in
paragraph 2 that his evidence was given to the police earlier and
he accepted that the statement given here was also given to the
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police and told that Islam took an axe from Shoaib and hit
Kamil with axe and hit the others with a stick. He became
covered in blood. In Para 3 of the cross-examination he also
stated that Kamil’s father is his cousin. At the time of the
incident at around 1:30 in the afternoon he was returning after
offering namaaz. He saw Kamil running towards him from the
west side from a distance of 100 feet. Kamil was alone at that
time. He did not got farsa blow while he was running rather, he
got farsa blow when everyone gathered around him to beat him.
He further stated that there was no one at the place when Kamil
was injured. Immediately after the incident, people came to
rescue him. He further stated that he saw the farsa blow from a
distance of two to three feet. Islam hit PW-4 with the farsa from
a distance of two steps. At that time there was no one to save
PW-4. The rest of the people had lathi in their hands and they
had beaten him with lathi after he had fallen on the ground. He
also stated that when he reached at the place of incident, Kamil
was unconscious.
9. PW-4 Kamil Khan is the injured in the instant
case. He has stated in his examination-in-chief that the alleged
incident took place on 13.02.2002 i.e. on Thursday at about 1:30
PM. There was a land dispute between him and the Islam
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Khan’s family. On the day of the incident, he had gone to Islam
Khan’s house to inform him that the Amin and other people
were waiting for him so that they could do the measurement of
the land. In a fit of anger, Islam Khan called his son Shoaib
Khan to bring his farsa and ordered other family members to
beat him. He then stepped behind hearing Islam Khan’s words
and began running towards the road. Islam Khan, Shoaib Khan,
Hasim, Masoom chased him on the road. Hasim hit him with a
stick, which hurt his left hand. Those people surrounded him.
He said that he was hit by a farsa on his head because of which
he got a cut on the left side of his head. He then became
unconscious and regained consciousness in Birpur Government
Hospital. He did not saw anyone else being hit. He claimed to
have identified the accused.
10. PW-4 stated in his cross-examination
paragraphs 2 and 5 that he does not know the Khasra of the
disputed land. The land was measured many times and a
Panchayat was also held. His land is adjacent to the disputed
land to the north-east. There is a road to the east which goes to
Parsa and there is a road to the west as well. To the north of the
road going to Parsa is the house and land of accused Islam. And
to the south, the witness stated that he has his own land and to
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the east is the land of Mehndi and his four brothers and in
paragraph 6, he stated that adjacent to his house is a vacant land.
11. PW- 5 Abul Kalam in his examination-in-
chief stated that the incident happened on Thursday at 1:30 PM
when he was at his uncle’s door. He stated that he saw Kamil
coming from Islam’s door. At that time, the Amin had come for
measuring the land. Kamil had gone to call Islam so that the
land could be measured. He further stated that he saw Kamil
running away and Islam, Shoaib, Hasim surrounded him. Islam
snatched the farsa from Shoaib’s hand and hit Kamil on the head
because of which Kamil fell down and he started bleeding.
11.i. PW- 5 stated in his cross-examination that
he has no relation with Quddush Khan (informant) and Kamil
(injured). He further stated that he did not saw how many
wounds were there on Kamil’s body. He further stated that on
the same date of incident, accused Islam Khan has filed a case
against Hira, Quddush, Matin, Salam in which there is an
allegation of injuring one Bibi Safaka.
12. PW-6 Haji Abul Kalam in his examination-
in-chief stated that at the time of the incident, he was going to
his house after offering Namaaz. He went to the place of
incident after hearing the noise. He saw Kamil lying injured
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next to the mosque. Hira and Nazim were taking him to the
hospital on a motorcycle. PW-6 has been declared hostile
because he had told the police about the alleged incident and
that he has not saw the incident with his own eyes. PW-6 in his
cross examination stated that when he reached the place of
incidence, the incident had already happened. There was blood
on Kamil’s body and shoulder. In paragraph 7, he stated that he
is related to Quddush Khan and visited his house sometimes.
13. PW-7 Quddush Khan informant in the
present case, stated in his examination-in-chief that the incident
occurred on Thursday at approximately 1:30 PM when the
Mukhiya had ordered for measuring the land and for this, Amin
had arrived for this purpose. There was an ongoing land dispute
between Islam Khan and the PW-4, and members of the
community were present with the Amin. After the Panch and the
Amin departed, Kamil (the informant’s nephew) went to inform
Islam Khan that the Amin had visited to measure the land. Islam
Khan allegedly responded angrily, stating that the Amin was
measuring too much land, and instructed his son, Shoaib, to
bring a farsa, saying that they would kill Kamil. He further
stated that Islam Khan, along with Shoaib, Hashim, Masoom,
Sheikh Niamul, and Muslim Islam, surrounded Kamil and
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assaulted him. Islam Khan struck Kamil twice on the head with
a farsa, while the other accused attacked him with lathis. Kamil
had fallen on the ground and blood was oozing out from his
head. He further stated that bystanders intervened, drenched
Kamil in water, and rescued him. Nazir and Hira took him to the
Balua Bazar hospital on a motorcycle but due to the
unavailability of doctors, they took him to the Birpur hospital.
They later visited the Balua Bazar police station and filed a
pending application, which had been written by an unknown
individual. The informant affixed a thumb impression on the
application.
13.I. In paragraph 5 of his cross-examination,
that the Mukhiya had issued a written order for the measurement
of the land, however, the written order was not served to the
accused. Further, in paragraph 9, he described the layout of the
disputed land, mentioning that Kamil’s house is located south of
it, followed by Salam’s house. To the north of Salam’s house is
the Kharanja road, and east of the road lies land belonging to
different individuals, forming a settlement of 70-80 houses. The
distance between the land and the houses of Islam Khan and
Salam is about 20-25 feet. He further stated in paragraph 12,
that approximately 15 people had gathered for the land
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measurement, who arrived at around 8:00 AM and dispersed by
1:00 PM. On that day, the witness did not go to offer namaz.
Para 13 reveals the names of some individuals present during
the measurement including Anisul Khan, Samusul Khan, Kalam,
Salam, Yunus, and Haji Abul Qasim, along with the witness.
Further, in Para 14, it was stated that Kamil went to inform the
accused Islam Khan that he had not attended the land
measurement despite being called. The Panch had been present
from 8:00 AM to 1:00 PM, and one of them, Jamiullah Khan,
went to call the ward member Islam Khan. At around 9:10 AM,
Jamiullah returned and stated that Islam Khan claimed his Amin
had not arrived and that he would participate in the
measurement once his Amin arrives. After the Panch left, Kamil
went to inform Islam Khan of the same. He further stated in
paragraph 15, that Islam Khan had filed a counter-case against
Ira Sakshi and her family members regarding the incident,
registered as Balua Police Station Case No. 49/2002. He further
stated in paragraph 18, that upon arrival at the place of
occurrence, Kamil was found lying on his stomach, bleeding
from the head. Kalam and Samsul were present at the scene for
two to four minutes before the witness arrived. Approximately
10-15 people had gathered, and Samsul had tied a cloth around
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Kamil’s head. Kamil was unconscious at the time.
14. Learned counsel for the appellants at the
outset, submits that the trial Court erred in convicting the
appellants for the charges levelled against them, in spite of
having no materials available on record, except for the oral
evidence of the prosecution witnesses. He further submits that
no independent witness has been examined in this case and the
doctor who prepared the injury report of the injured PW-4
Kamil Khan and the Investigating Officer who investigated the
case have not been examined by the prosecution. He has also
submitted that PW-1 and PW-2 have stated in their deposition
that they reached the place of incidence after the incident had
taken place. They did not saw the incidence with their own eyes
rather they were told about it by the villagers present there. He
also submits that PW-3 is not an independent witness and that
PW-3 has admitted to the long-standing land dispute between
the injured and the appellant. Hence, the prosecution has failed
to prove their case beyond all reasonable doubts despite that the
trial Court has convicted them, therefore, prayed to set aside the
conviction and sentence of the trial Court and to acquit the
accused extending benefit of doubt.
15. Learned counsel for the appellant has relied
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upon the judgment of the Hon’ble Apex Court in the case of
Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC
OnLine SC 80, whose relevant paragraph Nos.- 28 and 39 of the
said judgment are reproduced here-in-below:
“28. Before embarking on the exercise
of deciding the fate of these
appellants, it would be apt to take note
of certain principles relevant for a
decision on these two appeals.
Needless to observe, such principles
have evolved over the years and
crystallized into ‘settled principles of
law.’ These are:
(a). ……..
(b)………
(c). A defective investigation is not
always fatal to the prosecution where
ocular testimony is found credible and
cogent. While in such a case the court
has to be circumspect in evaluating the
evidence, a faulty investigation cannot
in all cases be a determinative factor
to throw out a credible prosecution
version.
(d). Non-examination of the
Investigating Officer must result in
prejudice to the accused; if no
prejudice is caused, mere non-
examination would not render the
prosecution case fatal.
(e)………
“39. Secondly, though PW-4 is said to
have reached the place of occurrence
at 1.30 p.m. on 5th September, 1985
and recovered a bullet in the blood
oozing out from the
injury at the hip of the dead body, no
effort worthy of consideration appears
to have been made to seize the
weapons by which the murderous
Patna High Court CR. APP (SJ) No.243 of 2013 dt.19-12-2024
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mere failure/neglect to effect seizure of
the weapon(s) cannot be the sole
reason for discarding the prosecution
case but the same assumes importance
on the face of the oral testimony of the
so-called eye- witnesses, i.e., PW-2
and PW-3, not being found by this
Court to be wholly reliable. The
missing links could have been
provided by the Investigating Officer
who, again, did not enter the witness
box. Whether or not non-examination
of a witness has caused prejudice to
the defence is essentially a question of
fact and an inference is required to be
drawn having regard to the facts and
circumstances obtaining in each case.
The reason why the Investigating
Officer could not depose as a witness,
as told by PW-4, is that he had been
sent for training. It was not shown that
the Investigating Officer under no
circumstances could have left the
course for recording of his deposition
in the trial court. It is worthy of being
noted that neither the trial court nor
the High Court considered the issue of
non-examination of the Investigating
Officer. In the facts of the present case,
particularly conspicuous gaps in the
prosecution case and the evidence of
PW-2 and PW-3 not being wholly
reliable, this Court holds the present
case as one where examination of the
Investigating Officer was vital since he
could have adduced the expected
evidence. His non- examination
creates a material lacuna in the effort
of the prosecution to nail the
appellants, thereby creating
reasonable doubt in the prosecution
case.”
emphasis applied
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16. On the other hand, learned Additional Public
Prosecutor has vehemently opposed this appeal and submits that
there is direct allegation against the present appellants, for
assaulting the informant. In view of the aforesaid statements and
the evidence on record, learned trial Court has rightly convicted
the appellants and the present appeal should not be entertained.
17. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the Trial Court.
18. Having deeply studied and scrutinized the
facts of the case and the materials on record, it is noted that
there are material inconsistencies in the deposition of the
witnesses. The informant in the instant case has failed to reveal
in the FIR the fact that the informant was present at the place of
occurrence when injured was being beaten up. The injured PW-
4 also stated that the informant was not present at the place of
occurrence when the incident took place. The Informant
therefore was not an eye-witness in the present case and he has
also not disclosed the source of information. Hence, PWs-1, 2
and 7 are hearsay witnesses in the present case. PW-6 has been
declared hostile by the prosecution. However, in Para 18 of his
cross-examination PW-6 stated that he was with the injured at
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the time of incident alone. The informant who registered the
instant case on the date of occurrence after he got to know about
the incident but the injured, PW-4 Kamil Khan stated in Para 11
of his deposition that he was unconscious after receiving one
blow of lathi and that he regained consciousness a day after the
date of occurrence. The trial court erred in its judgment as it
failed to ascertain the injury of PW-4 the injured. It has also
been observed that the other accused Imamul, Shoaib, Maasum
have not been mentioned by the informant in his deposition and
no overt act has been attributed to any of them other than Islam
Khan. Hence it shows the ongoing enmity between the parties.
Further, the contents of the FIR have also not been proved as the
evidence of the doctor as well as the Investigating Officer have
not been examined during the course of trial and non-
examination of I/O concerned and doctor concerned is fatal to
the case of the prosecution. The Supreme Court in Habeeb
Mohammad vs The State of Hyderabad 1954 AIR 51, 1954
SCR 475 pointed out that-
“It was the duty of the prosecution to
examine all material witnesses who
could give an account of the narrative
of the events on which the prosecution
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question depended on the
circumstances of each case. In our
opinion, the appellant was
considerably prejudiced by the
omission on the part of the prosecution
to examine Biabani and the other
officers in the circumstances of this
case and his conviction merely based
on the testimony of the police jamedar,
in the absence of Biabani and other
witnesses admittedly present on the
scene, cannot be said to have been
arrived at after a fair trial,
particularly when no satisfactory
explanation has been given or even
attempted for this omission.”a police
Jamedar, in the absence of Biabani
and other witnesses admittedly present
on the scene, cannot be said to have
been arrived at after a fair trial,
particularly when no satisfactory
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attempted for this omission.”
19. Further prosecution has failed to prove the
injury sustained by the victim as neither any medical report has
been exhibited nor any medical practitioner has been examined
during the course of the trial. Investigating Officer has also not
been examined during the course of trial as it was fatal since he
could have adduced the expected evidence and his non-
examination creates a material lacuna in the effort of the
prosecution to nail the appellants, thereby creating reasonable
doubt in the prosecution case and the learned trial Court failed
to scrutinize the evidence brought on record regarding
deficiencies, drawbacks and infirmities crept during course of
trial and passed the impugned judgment in complete ignorance
of criminal jurisprudence. Moreover, there are discrepancies
regarding the sequence of events and the presence of individuals
at the place of occurrence. Further, there is no eyewitnesses to
the said occurrence and all the PWs are hearsay witnesses and
have not seen the occurrence. Considering this fact, prosecution
has failed to establish this case beyond all reasonable doubt,
therefore, in such circumstances, it may not be proper to convict
the appellants/accused on the materials available on record.
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Hence, the judgment of conviction and order of sentence in this
present matter is fit to be set aside.
20. Hence, the judgment of conviction and order
of sentence dated 18.03.2013 passed in Sessions Trial No. 24 of
2004, arising out of Balua Bazar P.S. Case No. 48 of 2002 by
the learned Additional Sessions Judge-III, Supaul, is set aside
and the appellants are acquitted from all the charges levelled
against them. As the appellants are on bail, they are discharged
from their liability of bail bonds.
21. Accordingly, this appeal is allowed.
(Ramesh Chand Malviya, J)
Sunnykr/-
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